Engle v. Bronaugh , 210 Ala. 467 ( 1923 )

Appellant seeks to recover of appellee damages for wrongfully procuring the appointment of a receiver in a certain equity cause, wherein the appellant was respondent and the appellee complainant.

It is insisted that the appointment was void, for the reason it was made without the requirement of the execution of a bond by complainant, as provided by section 5728, Code 1907, and also that the receiver proceeded to exercise his authority under the appointment without the execution of a sufficient bond. The appointment of the receiver without the required bond of complainant was unauthorized and was subject to be vacated in the court below upon motion, or, failing therein, by appeal to this court. David v. Levy Sons, 119 Ala. 241, 24 So. 589; Dreyspring v. Loeb, 113 Ala. 263, 21 So. 73; Capital City Water Co. v. Weatherly, 108 Ala. 412, 18 So. 841.

Counsel for appellant insists the order appointing the receiver was void so as to constitute him a trespasser, for which the defendant in this action (complainant in the equity suit) was responsible upon the following, among other authorities: High on Receivers (4th Ed.) § 39c; Strum v. Blair,182 Ill. App. 413; Thornton Merc. Co. v. Bretherton, 32 Mont. 80,80 P. 10; Bowman v. Hazen, 69 Kan. 682, 77 P. 589; Tex., etc., Co. v. Gay, 86 Tex. 571, 26 S.W. 599, 25 L.R.A. 52; Ryan v. Murphy, 39 Cal. App. 640, 179 P. 517.

The trial court evidently based the ruling upon the case of Pagett v. Brooks et al., 140 Ala. 257, 37 So. 263, which was a suit upon a bond given by the complainant in an equity suit for the appointment of a receiver. There, as here, the cause was presented for final decree upon pleadings and proof, resulting in a decree adverse to the complainant, and dismissing the bill; but no order was made vacating the appointment of the receiver or removing or discharging the receiver or motion to that effect. The court in that case discussed the distinction in orders vacating the appointment of a receiver and one removing or discharging him, and then refers to the failure on the part of the respondent in the equity cause to raise the question in the court below as to the improvident appointment of the receiver, saying:

"The failure of plaintiffs to object to the order and in the event the objection was overruled to prosecute their appeal as provided by the statute must be held to be an acquiescence by them in it so as to prevent their questioning its propriety upon final hearing of the cause."

This holding of the court finds support in High on Receivers, § 37.

The complaint shows that the court had jurisdiction of the subject-matter and of the parties, and the failure of the court to require the execution of a bond by the complainant was a matter to be readily remedied in the court below upon application, or, failing therein, by appeal to this court. Under the authority of Pagett v. Brooks et al., supra, the silence of respondent in the equity suit must be held to show his acquiescence in the appointment of the receiver, so as to prevent his questioning in this collateral attack the validity of the appointment. See, also, sections 39a and 39b, High on Receivers, supra; Campbell v. Claflin Co., 135 Ala. 527,33 So. 275.

As to the failure of the receiver to execute proper bond, we are cited by counsel for appellant to section 121 of High on Receivers, to the effect that the title does not vest in the receiver until his bond is executed, but the succeeding section discloses that, upon the receiver filing a proper bond in accordance with the order of the court, his title to and right to possession of the property relates back to the date of his appointment, and illustrates the reason of the rule requiring some action in the court below by the respondent for such omission to be available to him.

We are of the opinion the court below properly sustained the demurrer to the complaint, and the decree will be accordingly affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.