The Birmingham age-herald., 1907-11-10
Criticises Jones' Opinion.


 Again it is claimed that this court can not properly make an appointment with out the assent of the other judge, be- cause 1t takes both to comprise the court. The language authorizing the appoint ment of referees is identical in terms with the language prescribing the rights, powers and duties of the court. Then 1t follows, if the contention made be true, that the concurrence of both judges is absolutely essential to the validity of every order or decree made by the court, and if one of the judges should be ab sent or sick, the wheels of justice would immediately stop. Surely, no court would contemplated such narrow and unrea- sonable construction of the statute. But the very opinion of the learned judge himself is sufficient authority to justify the conclusion that the order removing the petitioner was improvidently granted. If. as is staed therein, 'where both judges are of equal authority and dig nifty, and neither judge is an associate judge-one judge cannot without the con- sent of the other judge properly make an appointment to which his colleague objects" then it is equally true that one judge cannot make a removal to which his colleague objects. Again, it is con- ceded that both judges have concurrent Jurisdiction. This being the case, 1t has been held with practical unanimity that where a judgment or decree has been rendered by a court of competent juris- diction, 1t can only be reviewed by such methods as are provided by law, and no other court of concurrent jurisdiction has any power to modify, annul or set aside such judgment or decree" Q1 Cyc. 991 and numerous authorities there cited.) This wellknown legal principle has been settled in no uncertain terms by. numer- ous decisions of the Federal and state courts. In the case of Young vs. Mont gomery and Eufaula Railroad company. 30 Federal cases. page $50 (No. S166), which was a case decided by Justice Woods of the circuit court, sitting Tn the Middle district of Alabama, and in which case the question of the removal of re- ceiver, appointed by a court of co-ordi- nate jurisdiction was passed upon, the court in it's opinion in that case, after citing numerous authorities, says
 These authorities show that ques- tion, which is pending in one court of competent Jurisdiction, cannot be raised and agitated in another court: much less can one court assume to take possession of and administer property which is In the possession of another court and in course of administration by it. No court or judge would be authorized to grant such a leave of ex parte. and thus dispose of valuable rights and ad- vantages of other parties. without at least giving them their day in court And no matter what showing the complainants may be able to make as to the incompetency, unfitness or dishonesty of the receiver, this court cannot act. That showing must be made to the court which appointed him, and it must be asked to remove him. This court does not sit to revise or review the pro- ceedings of that court. Any motion therefore, to appoint a receiver in this case, while the property to be adminis- tered is in the possession of a receiver appointed by another court, must be over ruled. and this court can entertain no motion to remove or otherwise interfere with receiver appointed by another court"
 As To Test Case.
 Reference is made by the learned judge in his opinion to my refusal to join him in making up a test case. for the pur- pose of having an adjudication as to