53 S.C. 414 | S.C. | 1898
The opinion of the Court was delivered by
The plaintiff and the defendant, D. K. Cooley, were copartners in trade, under the name of Allen & Cooley, carrying on a mercantile business for a series of years prior to the 30th of September, 1897, and on that day the partnership was dissolved by mutual consent. For the purpose of the dissolution a
Upon the foregoing facts, which cannot well be disputed, the plaintiff commenced this action on the 10th of February, 1898, amongst other things, for the purpose of having a receiver appointed to take charge of all the assets of the late firm of Allen & Cooley, and administer the same under the direction of the Court. In the complaint, many other allegations are made, the most of which are disputed, going
On the 3d of March, 1898, the plaintiff applied for and obtained from his Honor, Judge Aldrich, an order restraining and enjoining the defendants from delivering to any person whomsoever the property and assets belonging to the late firm of Allen & Cooley, pending the hearing of an application for the appointment of a receiver of said property, motion to be heard by him at Pickens, S. C., on the 10th of March, 1898; and on the same day the plaintiff issued a notice, addressed to the defendants: “That upon the verified complaint in the above stated case, and upon the accompanying affidavits,” an application would be made to Judge Aldrich, at Pickens C. H., on the 10th of March, 1898, at 10 o’clock a. m., for an order appointing a receiver as aforesaid. It is stated in the “Case” that “A certified copy of the above order of injuction and copies of the above notice of motion and affidavits were duly and personally served on the defendant, Thomas D. Cooley, on the 4th day of March, 1898, and on the same day the sheriff left copies of the above papers with the wife of D. K. Cooley, at his residence ’ at Rowndesville, he being absent.” By consent of counsel the hearing of the motion for the appointment of a receiver was transferred to Greenville, and it was there heard on the 10th of March, 1898, at 8 o’clock P. M. At the hearing the defendants, for cause why the motion should not be granted, submitted the pleadings, including the answer of D. K. Cooley to the complaint, which had been served on the 25th of February, 1898, together with numerous af
The defendants gave due notice of appeal from the foregoing orders and decree in reference to the appointment of a receiver, including the last mentioned order instructing the receiver how to proceed with reference to the collection of choses in action belonging to the late firm of Allen & Cooley, upon the several exceptions set out in the record, which will be incorporated in the report of this case.
The only remaining inquiry is, whether there was any error in granting the order of 24th of March, 1898, based upon the verified petition of W. C. Tennant, as receiver. The error assigned in granting this order is lack of jurisdiction, based upon four grounds. 1st. Because the order was made without notice to the defendants’ attorneys. 2d. Because notice of appeal to the Supreme Court having
The judgment of this Court is, that orders appealed from be affirmed.