Fourth Nat. Bank v. Kelly , 203 Ala. 526 ( 1919 )

The point is made by counsel for petitioner that the appeal must be dismissed because it does not appear from the record that any one of the several appellants has any interest in the trust property or its proceeds, which was prejudiced by the order and decree appealed from. An examination of the record constrains us to hold that this contention is well taken.

The Fourth National Bank was the purchaser of the trust property at the foreclosure sale, and obviously has no interest in the subject-matter of this appeal.

Kirvin failed to show, as alleged in his answer contesting the petition, that he had preserved his standing as a bond-holding creditor by filing a statement of his claim with the register, as required by the decree of the court dated November 6, 1917. Hence the record does not show that he had any interest in the trust fund which was injuriously affected by the decree appealed from. And, as the cause in contest was submitted upon his allegation that his claim was duly filed, it cannot be held upon the showings of the record that the appellee waived its proof by Kirvin in the lower court.

The status of the Montgomery Bank Trust Company as trustee is quite different. As trustee, it represents the interests of the cestuis que trustent, and may rightfully appeal in its representative capacity "in any case in which the question of the increase or diminution of the whole fund is involved, and the increase or diminution would inure to the benefit or loss of all the creditors, although he cannot appeal in a contest of creditors among themselves." 3 Corp. Jur. 656, § 524, citing Riemensnider v. Riemensnider, 179 Ill. App. 209; Frey v. Shrewsbury Sav. Inst., 58 Md. 151; Bielman v. Poe, 120 Md. 444,88 A. 131. See, also, Bockes v. Hathorn, 78 N.Y. 222, and Hassall v. Wilcox, 115 U.S. 598, 6 Sup. Ct. 189, 29 L.Ed. 504. Here petitioner's claim for reimbursement out of the proceeds of the trust estate would, if allowed, diminish the corpus of that estate, and injuriously affect the interests of all the cestuis que trustent as such.

But the record does not show an appeal by the bank, as trustee, nor by any one authorized to represent it in that capacity. What it does show is an appeal by T. J. Reynolds and C. B. Brown, as receivers of the Montgomery Bank Trust Company. There is nothing to show the source or extent of their authority, nor does it appear that they have intervened or been substituted as parties to the cause in any proper way. 3 Corp. Jur. 639, § 500. And, even if authorized to prosecute an appeal in lieu of the bank to protect the assets of the bank, it does not appear that they have been clothed with the power and authority of the bank as trustee in this particular matter, nor, indeed, in any other.

It might be plausibly urged that the bank is personally interested in the trust fund to the extent of its compensation, and that the receivers may properly prosecute this appeal for the protection of its rights in that behalf. But it does not appear that the allowance of petitioner's claim of $2,235.25 out of the $12,000 of the proceeds of the trust sale can prejudice the trustee's allowance for compensation, but rather does the contrary affirmatively appear.

Receivers, like other persons, can take nothing by an appeal, unless they show that they are prejudiced by the judgment appealed from. Broughton v. Shivers, 152 Ala. 368, 44 So. 469; 3 Corp. Jur. 653, § 522; Id. 616, § 466.

It results that the assignments of error are not, as to these parties appellant, subject to review, and the appeal must be dismissed.

Appeal dismissed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.