Schilcer v. Brock & Spight, 124 Ala. 626

Schilcer v. Brock & Spight

124 Ala. 626 | Ala. | 1899

TYSON, J.

— This appeal is prosecuted from an order appointing a receiver. The order making the appointment was made by the chancellor in vacation, before answer, and within a feiv days after the filing of the bill in the cause. The record contains no application in writing for the appointment, but from the recitals in the decree made by the chancellor, it appears that it was made upon the averments in the bill. The notice issued purports to have been filed in the cause on the 25th day of May, 1899, and addressed to this appellant and the other respondent to the bill of complaint, recites that he “will take notice that the complainants will make application to Hon. AYm. H. Simpson, Chancellor, at the Court House in the town of Decatur at 9 o’clock A. M. on Saturday, the 27th day of May, 1899, or at such other time thereafter as the chancellor may fix, etc” The return of the sheriff shows this notice was served upon the appellant at 10:45 o’clock in the morning of the 27th day of May, 1899, one hour and forty-five minutes after the hour fixed in the notice for the hearing of the application. The recital “at such other time thereafter as the chancellor may fix, etc.,” cannot affect the question here presented. One of the essential elements of all legal notices of this kind, is definiteness as to time. If the notice only contained the above quoted words, it *628would certainly be void for uncertainty in this respect. Indeed the statute (section 799 of the Code) prescribes that “when the application is made in vacation,reasonable notice of the time of such application and the person to whom- it will be submitted must be given or good reason shown to the chancellor or register for the failure to give the same.” So then, so far as the question under consideration is concerned, the efficacy of the notice must stand' or fall, upon the determination of the legal effect of its service after the time fixed in it, had passed. It is clear that it did not have the effect of notice of the application and that the order of appointment must be tested by the rules of law governing the appointment of receivers without notice. Nor does the recital in the decree that the chancellor postponed the hearing of the application until 4 p. m. of the same day in order that this notice should be served cure the defect. The notice should have been returned by the sheriff at 9 a. m. The proper practice would have been for the chancellor to have fixed a later date for the hearing of the application and ordered an alias notice to issue to the respondent to appear at the time fixed by him for the hearing. The principle here involved is analagous to the service of a summons and complaint after the term of the court has passed to which it is returnable, or the service of a subpoena upon a witness after the day named in it for his appearnace has passed. IIow stands the case upon the appointment of the receiver without notice? The only averment contained in the bill upon which such an order can possibly be predicated as against this appellant, who was in the possession of the property by virtue of certain conveyances to him made by the co-respondent, is the following language: “Complainants are informed and believe and upon such information and belief aver that the said Scliilcer is insolvent and that he is converting said property to his own use.” The verification to the bill by each of the complainants is to the effect “that the matters and things alleged in the foregoing bill as facts are true, and those alleged upon information and belief he believes to be true.” The only other evidence of the truth of the allegations of the bill is the affidavit of Sittason who made the conveyance to *629t'lie appellant, to the effect that it embraced substantially all his property. So then the decretal order as-' sailed must find its support in the verification of the bill. ‘‘When the averment is positive the verification should be so. When it is upon information and belief, the verification should embrace both the facts, that the affiant has been informed and believes them to be true, either in terms or by affirming positively that the facts alleged in the bill are true as therein stated.” — Burgess v. Martin, 111 Ala. 656. These verifications are so defective* that they practically amount to no evidence of the truthfulness of the material facts alleged in the bill upon which complainants’ rights depend for the appointment of a receiver. — Pollard v. Southern Fertiliser Co. 25 So. Rep. 169, and authorities cited therein; Smith v. Teague, 24 So. Rep. 9.

The decree must he vacated and annulled. The receiver will be.required to account to the lower court for the property which went into his hands, and the proceeds of such as he may have sold, and all money collected by him upon accounts, notes, etc. Leave is granted the complainants to renew their application upon proper proof and notice, if they are so advised.

Reversed, rendered and remanded.