Talladega Mercantile Co. v. Jenifer Iron Co.

102 Ala. 259 | Ala. | 1893

HARALSON, J.

It is not open to dispute inthisea.se, that the appellant, by its judgment, and the record of the same in the probate court, as required by statute to make it a lien, the issue of execution on the judgment and placing it in the hands of the sheriff, acquired a 'lien • on the property of the defendant, the Jenifer Iron • Company, within the county which was subject to levy and sale, the bill filed by the Anniston Manufacturing Company and the O. H. Parker Company against the • Jenifer Iron Co., on behalf of themselves and other creditors of the respondent, in which suit a receiver was appointed, and who, under the orders of the court, took ■• possession of all the property and assets of the respondent corporation, did not and could not have the effect to.destroy or impair the judgment and execution lien of the appellant on the property of the defendant, the said Jenifer Iron Co. — Beach on Receivers, § 301; High on Receivers, § 138; 20 Amer. & Eng. Encyc. of Law, p. 126, §V.

• The bill was demurred to on-many grounds; but only one seems to be insisted on in argument, and that one is, in effect, that the complainant showed no reason why it should not intervene and make itself a party in the said case of the Anniston Manufacturing Company, and. another against the Jenifer Iron Company.

It is not to be denied that, on a proper application by petition to the court, the complainant might have been allowed to file its claim against said company, and had it allowed, without loss of its lien and consequent preference over other debts, not of superior right or lien. The whole matter being before the court in one suit, the rights of all creditors might have been properly ascertained and adjudicated in that proceeding. — Louisville Manfg. Co. v. Brown, 101 Ala. 273; Ex parte Printup, 87 Ala. 148; Carlin v. Jones, 55 Ala. 624; Wiswall v. Sampson, 14 How. 53; Beach on Receivers, § 301; Story. Eq. Pl., § 208. In Ex parte Printup, supra, it is said that “intervention by petition may be allowed when the purpose of the petitioner is to assert his interest and right to share in a fund which is in the. custody of, and being administered by, the court,” but not where the “purpose is to defeat the only action of the court which could produce a fund to be administered and distributed.” A complainant, has the right, — if he keeps within the rule as to necessary parties, — to select and sue such parties as against whom he seeks some redress ; and no one, a stranger to the litigation, has the right, on his own petition and against the objection of the complainant, to be made a party to the record.

After a careful review of the authorities, and as a deduction therefrom, we have heretofore announced the rule in a case like the one at bar, — when the subject matter was in the hands of a receiver, so that no independant suit could be instituted in regard to it, except by leave of the court, — tobe, that “when a person, nota party to a pending suit, between whom and the complainant there is no privity, but who has a claim or lien on the property, oris interested in the subject matter of the suit, desires for his own protection to present his new claim, to assert his independent right, and raise new issues, he must do so by a formal bill, containing appropriate allegations — an original bill in the nature of a cross-bill, or of a supplemental bill, as the case may be.” — Ex parte Printup, supra; Renfro v. Goetter, 78 Ala. 314; Cowles v. Andrews, 39 Ala. 130; Stretch v. Stretch, 2 Tenn. Ch., 140.

Now, it appears in the matter we have in hand, that the Anniston Manufacturing Company, and the O.H. Parker Company,- complainants in the bill against the Jenifer Iron Company — in which a receiver was appointed by the court — filed it in behalf of themselves and all other creditors of the said defendant company, who would come in and make themselves parties to the suit. They sought to exclude no one; who was a creditor of the defendant, from the fruits of the litigation, and the door was opened as wide to the complainant in this suit to come in and propound its claim, as to any other creditor. The complainant might have heeded the invitation, but it did not do so. It sought to enforce its lien and debt by an independent bill against the Jenifer Iron Company and the receiver in the other case. Before doing so, however, it was careful not to disobey the injunction of the court in the injunction suit by instituting its suit without leave of the court, but applied to the chancellor of the court, in which said cause was pending and under whose orders the receiver was acting, for leave to file its bill, and the chancellor made and signed the following order on the bill: ‘ ‘ On inspection of the foregoing bill of complaint, it is ordered, Adjudged and decreed that the complainant has leave to make the said receiver, John E. Ware, a party defendant thereto, and to file said bill and to proceed regularly therewith . in this court. ’ ’ It was clearly within the competency of the court to make such order.

The fact that complainant might have sought to propound its claim and lien by petition in the other cause was not a right exclusive of any other proper method of procedure the court 'might allow, and the one proposed and allowed was certainly an adequate and proper one, when done by leave. After having filed the bill, with such license, the complainant was entitled to the aid of the court against the attack of its adversaries to eject it from the temple, loaded with the costs of the bill which the court had given it leave to file, and deprive it of the protection of the court. Its bill should have been retained as supplemental to the creditor’s bill,- to be prosecuted independently or in connection with that case, as the court might in its best discretion direct, and in such manner as to certainly administer and secure whatever rights it had thereunder. — High on Receivers, §§ 138, 139.

The complainant presents a case of superior right, entitling it to paymeát as soon as it can be done consistently with the rights of others. Mr. Beach lays it down as a just rule, that whenever property, subject to a lien, has been brought within the domain of a court of equity, and a receiver of the property is appointed, whatever profits he gets into his hands will be dedicated, along with the corpus of the fund, to the satisfaction of the lien, after paying taxes and the like burdens.— Beach on Receivers, § 301, and authorities there cited.

The court erred in its decree sustaining the demurrer to the bill and taxing complainant with the costs.

Reversed and remanded.