72 Ala. 259 | Ala. | 1882
This is an appeal from an order appointing a receiver, and the record presents no other question. The bill was filed November'22d, 1882, and on the same day summons was issued and served on each of the defendants. On the same day, November 22d, a petition was filed, praying the appointment of a receiver, and setting November 28th for its hearing in vacation. Notice of this motion was also issued and served on the same day, November 22d. The bill was b}r a creditor at large, and was filed under section 3886 of the Code, which enacts that, “ a creditor without a lien may file a bill in chancery, to subject to the payment of his debt any property which has been fraudulently transferred, or attempted to be fraudulently conveyed by his debtor.” The chancellor first made an order for an injunction, prescribing the bond to be given by complainants before its issue, and then appointed a receiver, the appointment to take effect after the injunction bond should be approved, and requiring the receiver to give bond before entering upon the trust. The bonds were given, and an order was issued, placing the receiver in possession, and prescribing his duties. The property sought to be condemned is a stock of merchandise, alieged to have belonged to Jacoby, the debtor, and charged to have been fraudulently conveyed to Weis.
It is urged for appellant, that the application for a receiver was premature, and should not h^ve been entertained until after answer filed. Such is said to have been the rule in the earlier English practice. But the rule there-was relaxed many yeai’s ago. In a note to Huguenin v. Basily, 13 Vesey, 105-7, it is said, “ that, in modern practice, an order for a receiver may be obtained on motion, grounded on affidavit, before answer, whenever justice appears to require it,” In High on Receivers, § 103, the author says: “It may be regarded as the settled English practice, to grant receivers before answer, in cases of emergency calling for immediate interference of the court to protect the equities of plaintiffs, and where the merits of the cause are sufficiently disclosed by affidavits; and if defendant has put in an affidavit, in opposition to plaintiff’s affidavit upon the motion, the affidavit will be regarded as a sufficient appearance for the purpose of entertaining the motion.” This is the principle declared in Vann v. Barnett, 2 Bro. C. C. 158. In section 105, Mr. High, speaking of cases of fraud and imminent danger, says: “ Where the emergency shown is such as to render it essential to justice that a receiver should be immediately appointed, it may be done before answer, since to delay the relief might entirely defeat the object sought by the application.” There is nothing in this objection.
It is objected, in the next place, that the complainants are only creditors at large, without a judgment, and that therefore
What we have above quoted, from books of the highest authority, proves two propositions: First, that in cases of pressing emergency, the Chancery Court may appoint a receiver before answer filed; and, second, a receiver may be appointed, whenever the complainant has a lien, or a special right to have the property or funds in controversy applied to the payment of his •claim. Of course, this must be taken with the qualification, that there must be shown a sufficient necessity for taking the property into the court’s custody.
The statute which now forms section 3886 of the Code of 1876 was enacted February 24, I860.' — Pamph. Acts, 35. Be
The sworn statements found in this record make a very strong prima facie case of pressing emergency, and the rebutting affidavits are wholly insufficient to overturn it.
Affirmed.