109 Ala. 371 | Ala. | 1895
The appeal is prosecuted from an order of the court appointing a receiver without notice. After the order appointing the receiver had been entered, but before talcing the appeal, the respondent, appellants here, submitted several motions to the court, which were ruled upon, but these rulings are not involved in this appeal. It may facilitate the further prosecution of the cause to state a general principle of pleading, raised by the motion of respondents to strike complainants’ bill from the docket and file. A creditor’s bill filed to reach property fraudulently conveyed by a debtor, in the name of one creditor on behalf of all other creditors who may see proper to come in and make themselves parties, will not preclude other creditors from proceeding in like manner by original bill, until there has been a decree upon the merits, granting relief. — Hall v. Alabama Terminal & Improvement Co., 104 Ala. 577. If some of the parties complainant to the second bill filed were complainants to the first bill, the objection should have been directed to such parties, and not to the whole bill. A pending suit may be pleaded in abatement. A motion to strike is not proper pleading in such cases.
The counter abstract shows that complainants were required to enter into bond as provided by statute. Acts 1894-5, p. 585. The only question before us is whether the facts averred in the bill necessitated the appointment of a receiver without delay and without notice. The material averments are that complainants are creditors of J. K. Maxwell and John E. Maxwell, composing the firm of J. K. Maxwell & Co., engaged in mex*chandising, that they are insolvent, that they'have sold a
Affirmed.