107 Ala. 520 | Ala. | 1894
An appeal from a final decree of a court of chancery, is matter of right if the party appealing gives security for the costs of appeal. An appeal taken in this mode does not operate a divestiture or suspension of the authority of the court to proceed in the execution of the decree. Whatever measures are necessary for the execution of the decree, it is the duty of the court on the application of a party in interest, to pursue, as if the appeal had not been taken. If, in this respect, it is intended to stay the authority of the court, the statutes require that bend with security, with penalty and conditions adapted to the character of the decree, known and. recognized as a supersedeas bond, be given. The present appeal was taken on a mere suretyship for costs. In the general proposition on which the chancellor proceeded, that the appeal removed the case wholly and absolutely into this court, so far as the equities of the case were involved, and that it was not in his province to make any order or decree which would disturb or displace them as settled by the final decree, there must be unqualified concurrence. If this were not true, it is obvious, the case would at one and the same time be pending in two courts, each having and capable of exercising authority over it; the authority of the lower court, of necessity, yields to the authority of the court the law invests with the higher jurisdiction. The error of'the chancellor, seems to lie in the supposition, that his power and duty to proceed in the execution of the decree, were- suspended by the appeal, though the measures necessary, may directly or indirectly affect the equities of the case: the duty and authority results from the statutes, which in effect distinguish the operation and effect of an appeal taken only on a suretyship for
The error of the opinion of the chancellor, does not necessarily render erroneous the order refusing to discharge the receiver and directing him to pay over the moneys in his hands to the petitioners. A receivership usually terminates on the termination or the suit in which the receiver is appointed. Cases will arise, however, of peculiar exigencies, which may require that the receivership be continued; or if it be not continued that the court should not absolutely part- with the custody of the funds in the possession of the receiver. When such cases arise, it is matter within the sound judicial discretion of the chancellor, to determine whether the receivership shall be terminated, or continued, pending an appeal, which does not operate a divestiture or suspension of the duty and authority to proceed in the execution of the final decree, from which the appeal is taken; that decree not in terms having terminated the receivership, and directed the disposition of the funds in the possession of the receiver. In such cases, the termination of the receivership, and the disposition of the funds in his possession, is in the nature of a proceeding supplemental or additional to the ordinary process of the execution of a final decree ; and we repeat, in employing them, the chancellor has a judicial discretion to be exercised in view of the exigencies of the particular case.
A continuance of the receivership in this ca<e, is necessary only for the safe-keeping of the funds, and the preservation of the control of the court over them. The formal continuance of the application, a matter of which the petitioners could not have complained, would have operated, if the continuance had been repeated, to continue the receivership. Properly, the chancellor did not continue the application, but denied it,' affording opportunity for the revision of his action. The fund is large ; the petitioners reside without the State; if the receivership had been terminated, and the court had parted with the custody of the funds absolutely, as was solicited by the petitioners, in the event of a reversal of the decree, restitution could be compelled only by resort to the courts of the State in which the petitioners reside, and restitution would be dependent on their ability to
The petitioners can'renew their applications ; and we deem it proper to say, as the case is now presented, if it is accompanied by'security the chancellor approves, guaranteeing the restitution of the funds in the event of a reversal of the decree, the receivership ought to be terminated, and the funds paid over to the petitioners.
For the reason given, the application for mandamus must be denied at the cost of the petitioners.
