Williams & Fowler v. Dismukes

McCLELLAN, J. — This case is wholly unlike that of Sackhoff v. Vandergrift, 98 Ala. 192, which is referred to by the chancellor as authority for 'the decree below, and relied on here to support that decree. The point of radical difference lies in the facts that in that case the property for which a receiver was prayed and appointed was in the custody of the chancery court when the bill was filed and by which the receiver was appointed, while in the case at bar the property involved was, at the time of bill filed and receiver appointed, in the custody of another wholly independent and entirely competent tribunal —the- circuit court of the county. And in that case this court expressly excluded t'he idea that the decision there made should be authority for a like conclusion in a case like the present one; Stone, C. J., saying: “We have mentioned the fact that in this case both suits are pending in the same court, and that consequently the chancellor’s order would not have the effect of taking property levied on under process from one court, and placing it under the control of another court. Oases may arise in which property is levied on under process from one court, which in value exceeds the demand under which it is seized and bonded. Whether another creditor, asserting his claim in another’ jurisdiction, may not reach that surplus of value and make it available, is not presented by this record, and is not intended to be decided. We leave ourselves uncommitted, alike on the right and remedy in such conditions.” So that nothing which was involved, decided or said in that case can be justly looked to as authorizing a decree appointing a receiver in this. Apart from that case, we do not think even a pretense can be advanced in support of the jurisdiction and power of one court to take from another of concurrent jurisdiction the possession and control of property which the latter has first taken and assumed. A case in point is that of Dollins & Co. v. Lindsey & Co., 89 Ala. 217, where, as in the case at bar, property had been levied upon by attachment issuing out of the circuit court, and delivered by the sheriff to a claimant upon the execution of the statutory bond, when a bill was filed in chacnery by a creditor of the [409] defendant in the attachment suit to set aside a conveyance to the claimant by said creditor as fraudulent, and prayed the appointment of a receiver to take possession of the property &c. &c. A receiver was appointed, and from that order an appeal was prosecuted to this court, where the order was reversed and the appointment vacated, for reasons thus stated by the court: “The property which had been attached, and to which statutory claim had been interposed, was in the custody of the law, and it was error to take it away from such custody, and place it in the hands of the receiver. It was alike prejudicial to the rights of the claimants and their sureties, and to the prior acquired jurisdiction of the law court over the res, which was the subject of contention. — Rives v. Wilborne, 6 Ala. 45 ; Langdon v. Brumby, 7 Ala. 53 ; Kemp v. Porter, Ib. 138; Read v. Sprague, 34 Ala. 101. The only exception to this rule is,_ when the second seizure is under process which ha^ a paramount lien.” And this is but the statement and recognition by this court of the thoroughly well established doctrine, that property put in gremio legis through the process of one court, and thus in custody of that court by its officers is beyond the reach of seizure under the order of process of another court of co-ordinate jurisdiction andpowers. — Works on Jurisdiction, pp. 68 et seq., § 17 ; Gay Hardie & Co. v. Briarfield Coal & Iron Co., 94 Ala. 303, 308. And in principle it can be of no consequence that the value of the property thus in the custody of a competent court is greatly in excess of the demand of the plaintiff at whose suit the seizure was made. It is not a question of amounts or quantities, but of the inviolability of the court’s custody and possession. To allow another court upon a mere averment, as here, of an excessive levy, or even upon its determination on evidence. that more property had been seized than was necessary to satisfy the judgment which might be rendered in the court of seizure, to strip that court of the possession and control of all the property, or even of what the interfering court might deem the excess beyond that necessary to satisfy the pending claim, would not only lead to the greatest embarassment in judicial administration, but also to the establishment of a principle opposed to all received notions of the independence of co-ordinate courts, and whereby the circuit court would proceed in [410] the discharge of its important functions in respect of a large class of cases coming rightly and properly before it only by the grace of courts of chancery. "We deem it not only better, but absolutely necessary, to the administration of justice, to maintain and re-affirm the well settled doctrine, that one court cannot take property out of the.custody of another court of co-ordinate powers in the premises, except in the assertion of a lien paramount to the demand upon which such possession was taken and is held. The present bill is, therefore, without equity in so far as it seeks to have a receiver appointed for the property involved in the claim suit at law. The Memphis Grocery Co., plaintiff in attachment at law, has, of course, a clear legal right to prosecute its action against the defendants in attachment;, and also to maintain the affirmative of the issue made up or to be made up between it and. the claimants. It is equally clear, of course, that the claimants are entitled to prosecute their claim in that court. If they are bona fide purchasers of the stock, and that is the issue in the claim suit, they will be entitled to the goods as against the plaintiff in attachment; and it would be to the last degree inequitable to enjoin them, as is prayed, to make defense against the claim of such plaintiff that they are fraudulent purchasers. The bill is, therefore, without equity also in so far as it seeks to enjoin Williams & Fowler from prosecuting their claim to the property. The bill, while making no case for a receiver nor for an injunction against Williams & Fowler in respect of the claim suit, does make a case of fraud in the sale of Williams & Sons to Williams & Fowler, and on the principles so elaborately considered in the case of Gay, Hardie & Co.v. The Briarfield Coal & Iron Co., 94 Ala. 303, the complainants had a standing in chancery to determine their abstract rights in respect of the property of-their debtor alleged to have been fraudulently sold and conveyed, as against the alleged fraudulent purchasers thereof and to a decree, if the evidence sustains the averments of the bill, subjecting to complainants’ demands all of said property, if any, which may be in the hands of Williams & Fowler when they shall cease to hold it as under the claim bond executed by them in the circuit court. In this aspect and to this end, and this only , the bill has equity ; and upon this considera [411] tion alone, the decretal order of the chancellor overruling the motion to dismiss for the want of equity is affirmed .