Van Schaick v. Goodwyn

• Decision Date: 20 June 1935
• Docket Number: 3 Div. 133
• Citation: 163 So. 327,230 Ala. 687
• Parties: VAN SCHAICK, Superintendent of Insurance of New York, v. GOODWYN et al.
• Court: Alabama Supreme Court

163 So. 327

230 Ala. 687

VAN SCHAICK, Superintendent of Insurance of New York, v. GOODWYN et al.

3 Div. 133

Supreme Court of Alabama

June 20, 1935

Rehearing Denied Oct. 10, 1935

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Application by George S. Van Schaick, as Superintendent of Insurance of New York, liquidating the Southern Surety Company in New York, for rehearing of decree of distribution in the matter of liquidation of Southern Surety Company in Alabama, R.T Goodwyn, Ancillary Receiver, resisted by the American Surety Company, claimant. From an order or decree denying rehearing petitioner appeals.

Appeal dismissed.

Ball &amp Ball, of Montgomery, for appellant.

Steiner, Crum & Weil and Sam Rice Baker, all of Montgomery, for appellees.

BROWN Justice.

This appeal is prosecuted by George S. Van Schaick, as superintendent of insurance of New York, liquidating the Southern Surety Company, who was not a party to the suit when the final decree was rendered confirming the register's report and decreeing the distribution of the funds brought into custodia legis through the appointment of Goodwyn as receiver.

Subsequent to the rendition of said final decree, the appellant was allowed to file a petition for rehearing under Rule 81 of Chancery Practice, and which appellee moved to strike. The application for rehearing was denied, and he has appealed.

The law is settled that the granting or denial of a rehearing on petition filed during the term at which the decree was rendered under said rule is a matter within the unrevisable discretion of the court in equity proceedings. Ex parte Gresham, 82 Ala. 359, 2 So. 486; Cummings v. May, 110 Ala. 479, 20 So. 307; Cox v. Brown, 198 Ala. 638, 73 So. 964.

It is also settled that while the circuit court, as a court of equity, is always open for the transaction of business before it, nevertheless, for the purpose of granting rehearings, section 6636 and section 6670 of the Code establish in every cause a new term of the chancery court of 30 days' duration, beginning on the day of each final decree, and after the expiration of 30 days, the court is without power to grant such rehearing, unless opposing counsel waive the delay, or unless jurisdiction is retained by the decree. Gibson v. Farmers' Bank of Luverne, 218 Ala. 554, 119 So. 664; Ex parte Howard (Howard v. Ridgeway et al.), 225 Ala. 106, 142 So. 403.

The decree...