Cobbs v. Vizard Inv. Co.

62 So. 730 | Ala. | 1913

SAYRE, J.

Creditors of the Union Bank & Trusl Company, a corporation, filed the bill in this case alleging the insolvency of the said Bank & Trust Company, and praying that its assets be decreed to constitute a trust fund for the payment of the claims of all its creditors, and that the same be marshaled and administered for their benefit as provided by section 3509 of the Code. Under the bill, and in accordance with its prayer, appellant was appointed receiver. J. S. Kennedy filed his claim as a depositing creditor in the sum of $3,894. His deposit had been made to the credit of “J. S. Kennedy, as trustee.” Ector H. Smith had been president of the insolvent corporation, had controlled its affairs, and was largely indebted to it. Kennedy had received and deposited the money in the course of transactions in which Smith and the Vizard Investment Company were interested, and the complication was such that he did not really know to whom it belonged. Both Smith and the Investment Company claimed it. After the time fixed by the court for the presentation of claims against the estate had expired, the Investment Company was allowed by the court to propound its claim to that part of the fund in question by procuring the claim filed by Kennedy to be so amended as to show a claim in its behalf. The Investment Company’s claim was disallowed by the clerk, acting as register. But on exceptions taken to his report the court reversed the clerk’s finding, and decreed the deposit to be the property of the Investment Company. The receiver seeks by this appeal to review the court’s ruling in that behalf.

Appellee moves that the appeal be dismissed. We discover no reason why the appeal should be allowed, and are of opinion that the motion should prevail. A receiver may undoubtedly appeal from the orders and decrees affecting his claims for fees and expenses or involving him in personal responsibility. — Thornton v. Highland Ave. R. R. Co., 94 Ala. 353, 10 South. 442. But he is the mere agent of the court for the collection and distribution of the assets of the insolvent corporation under orders of the court which fully protect him, and in this disposition of the property he has no personal concern, except to the limited extent indicated above. And so it is generally held that he cannot appeal from an order respecting the. conflicting claims of creditors. To such controversies the receiver is not a party in interest, and for that reason has no appeal as of right.— Dorsey v. Sibert, 93 Ala. 312, 9 South. 288; Smith on Recrs. § 41; High on Recrs. (4th Ed.) § 809b. The distribution of the fund among creditors concerned the creditors only; and, if any of them were dissatisfied with the court’s decree, they should have taken the appeal at their cost, and .not at the cost of the fund. — Bank v. Bank, 127 N. C. 432, 37 S. E. 461.

In its decree providing for the administration of the trust estate the circuit court, sitting in equity, authorized and required its receiver “to contest and resist the allowance of any claim to the extent it is unjust or illegal, either in amount or as to the security claimed, to collect and reduce to money with due and reasonable speed and diligence all of the assets and property of the said respondent Union Bank & Trust Company, * * * and to employ and have the services of legal counsel for all such pui’poses and for any other purpose in the discharge of his duties as such receiver.” All this poAver and duty the receiver has exercised and discharged as to the item in dispute by contesting appellee’s claim in the court beloAV. The receiver is the mere creature of the court. He must give heed to his master’s voice. He cannot make authority for himself. Neither the recited language of the decree nor any reasonable implication to be found in it authorizes the receiver to question the court’s decree by appeal. In the general expression of this decree there is nothing to indicate that it was Avritten with the vieAV of conferring unusual authority upon the receiver, or that the court had in contemplation the propriety of the receiver’s appeal from its future orders. Appellant seems to think that receivers should have the right in all cases to review the rulings of the court under whose appointment they act. But we doubt that such policy would conserve the interest of those • for whose benefit insolvent funds are to be administered. It would seem to tend rather to the consumption of the fund in the payment of costs and atttorney’s fees. The court may in its discretion authorize its receiver to bring its decree under review by appeal, but in this case it has not done so, and the appeal must be dismissed.

Appeal dismissed.

All the Justices concur, except Dowdell, C. J., not sitting.