Schilcer v. Brock
| Decision Date | 30 January 1900 |
| Citation | 27 So. 473,124 Ala. 626 |
| Parties | SCHILCER v. BROCK ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Morgan county; William H. Simpson Chancellor.
Bill in equity by Brock & Spight and others against F. M. Schilcer and another, praying for the appointment of a receiver. From a decree appointing a receiver, defendant Schilcer appeals. Reversed.
The bill in this case was filed by the appellees against the appellant, Fred M. Schilcer, and C. Ed. Sittason. The bill avers the existence of certain indebtedness to the complainants by the defendant Sittason, and the execution of certain notes and mortgages to the appellant, Schilcer, by sad Sittason, and that said Sittason executed a bill of a sale of the property covered by the mortgages, which was all property said Sittason owned, in absolute payment of the mortgage indebtedness, and that "the said C. Ed Sittason is insolvent, and the complainants are informed and believe, and upon such information and belief aver, the said Schilcer is insolvent, and that he is converting said property to his own use." The bill prayed that the bill of sale to the property thereby conveyed be declared to inure equally to the benefit of the complainants and all other creditors of Sittason, and that a receiver be appointed. The other facts of the case are sufficiently stated in the opinion. Upon the hearing of the application for the appointment of a receiver, the court appointed one; and it was from this decree that the present appeal is prosecuted and its rendition is assigned as error.
E. W Godbey, for appellant.
Harris & Eyster, for appellees.
This appeal is prosecuted from an order appointing a receiver. The order making the appointment was made by the chancellor in vacation, before answer, and within a few days after the filing of the bill in the cause. The record contains no application in writing for the appointment, but, from the recitals in the decree made by the chancellor, it appears that it was made upon the averments in the bill. the notice issued purports to have been filed in the cause on the 25th day of May, 1899, and addressed to this appellant and the other respondent to the bill of complaint, and recites that he "will take notice that the complainants will make application to Hon. Wm. H. Simpson, chancellor, at the court house in the town of Decatur, at 9 o'clock a. m. on Saturday, the 27th day of May, 1899, or at such other time thereafter as the chancellor may fix," etc. The return of the sheriff shows this notice was served upon the appellant at 10:45 o'clock in the morning of the 27th day of May, 1899,-1 hour and 45 minutes after the hour fixed in the notice for the hearing of the application. The recital, "at such other time thereafter as the chancellor may fix," etc., cannot affect the question here presented. One of the essential elements of all legal notices of this kind is definiteness as to time. If the notice only contained the above-quoted words, if would certainly be void for uncertainty in this respect. Indeed, the statute (section 799, Code) prescribes that, "when the application is made in...
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