Gillett v. Higgins

HARALSON, J. The action taken by the defendants in excluding the complainant from the business of his firm, as set up in the bill, presented a sufficient cause for the dissolution of the partnership by the court of equity on the application of the complaint. — Moore v. Price, 116 Ala. 247; Meaher v. Cox, 37 Ala. 201; 17 Am. & Eng. Ency. Law, (1st Ed.) 1106-7. While the taking into the custody of the court the partnership effects, was a stringent measure, not to be resorted to except remedially, yet it rests largely within the discretion of the court; and the authorities affirm, as a general rule, “that when a bill is filed seeking a dissolution of a partnership, and it satisfactorily appears that the complainant will be entitled to a decree for dissolution, a receiver will be appointed of course.” — Bard v. Bingham, 54 Ala. 463; Briarfield Iron Works v. Foster, Ib. 622; Bank v. U. S. S. & L. Association, 104 Ala. 297. The steps taken by complainant’s partner, Gillett, in selling out the firm’s goods and turning over the business to strangers in the manner averred were radical and extraordinary, and in utter disregard of complainant’s rights and interests, making a prima facie case for the appointment of a receiver, even without notice of the application. — Hendrix v. A. F. L. M. Co., 95 Ala. [449] 316; Ashurst v. Lehman Durr & Company, 86 Ala. 370. Here the matter of the appointment of the receiver, was brought forward by supplemental bill, the receiver was appointed on the 8th of September, and qualified by executing the bond prescribed on the 9th, a motion was made to discharge him on the 12th, which was set for hearing on the 15th of September and overruled. We have not been shown nor have we ascertained wherein the court erred in the appointment of the receiver. No appeal lies from the refusal of the court to vacate an order appointing a receiver, such an order being merely interlocutory. — Miller v. Lehman, Durr & Co., 87 Ala. 519. Affirmed. McClellan, O. J., Dowdell and Denson, J.J., concurring.