Fricker v. Peters & Calhoun Co.

21 Fla. 254 | Fla. | 1885

The Chief Justice

delivered the opinion of the court:

This is an appeal from an interlocutory order of the Circuit Court appointing a receiver. ,■ ..

The first question presented is-as to the authority of the Chancellor to grant an order for the appointment of. a receiver without notice to defendants, Eran k Ericker and M. E. Ericker, or either of them. It may be confidently asserted that it is the uniform practice not to entertain motions for the appointment of receivers except upon notice to the parties whose property is to. be divested. High on. Receivers, pp. 75, 76 and 77. Again,, the rule requiring notice to defendant before an application for .a receiver will be entertained would seem to be not a matter of discretion but an inflexible rule which the courts are not at, liberty to disregard. Ib. See also State of Florida and Trustees of I. I. Fund vs. J., P. & M. R. R. Co., 15 Fla., 201. While the rule is very strict, and we think justly, there are however some recognized exceptions to it in which an ex parte application will be entertained.

The only one of them that has any application here “ is in a case of grave emergency, demanding the immediate interference of the court for the prevention of irreparable injury.” No such facts are stated in the bill as would be necessary to bring it within the exception. The only allegation in the bill touching the subject is, “ it greatly fears if the defendants are permitted to remain in possession of said property after the commencement of this suit that the same will be disposed of so as to be placed beyond the reach of your orators, and their debt will be wholly lost to them.” The fears of the complainant corporation are not sufficient without stating the facts and circumstances from which such fears might be inferred. See Section 113, High on Receivers, p. 77.

In Verplank vs. Mercantile Insurance Company of New York, 2 Paige, 438, the court says, “the particular circumstances which render such a summary proceeding necessary should be distinctly stated in the bill or petition on which the application is founded.” We doubt if it is a correct practice to regal’d any evidence, as to the existence of such emergency as the law contemplates, in the form of an affidavit containing statements not included in the bill. But waiving that question there is nothing contained in the affidavit which will support the theory of “ a grave emergency.” It simply says that from affiant’s knowledge of the antecedents of one of the defendants he believes that he will, unless prevented by the court upon notice of the commencement of this suit, and before a decree can be obtained, put the said stock beyond the reach of the process of the court. It contains no fact or circumstance as a basis for any belief. It should be an extraordinary emergency to justify an appointment of a receiver without notice to the defendants, whose property was to be taken. There is no such emergency shown here.

Aside from the question of notice, neither the bill or accompanying affidavit shows sufficient grounds for the exercise of the extraordinary power of appointing a receiver. No facts are set forth showing an intention on the part of defendants to defraud the complainants beyond the mere fact of non-payment of a balance of account due. The expression of a fear that the property of defendant will be placed beyond the reach of the creditors, is insufficient.

The order of the Chancellor, granting the appointment of a receiver, is set aside, and the cause is remanded.