Dollins & Adams v. Pollock & Co.

89 Ala. 351

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

STONE, C. J.

Pollock & Co. sued out an attachment against Price Brothers, which was levied on a stock of merchandise. Dollins and Mrs. Adams as partners, claiming to be purchasers from Price Brothers, interposed a claim to the merchandise, executed a' claim bond, and inaugurated what is known in our jurisprudence as a trial of the right of property — a statutory proceeding which answers the purpose of an action of trespass against the sheriff, when it is complained that under process against one he has levied on the personal goods of another. The issue of merit in such trial is formed by an allegation on the part of the plaintiff in the process that the goods levied on are subject to it, and a denial by the claimant of the trutii of that allegation. Such suit can be resorted to only when there is another suit, or final process in progress; and in the absence of such suit, or process for tbe enforcement of a judgment recovered, there can be no rightful resort to this statutory remedy. The statutes define its boundaries. — 3 Brick: Dig. 776. In such trial, the claimant is not concerned in the rightfulness of the levy. His right to litigate is confined to his right to the property, and to his legal right as contrasted with any equitable claim he may assert. . Tb. But, if the process under which the condemnation is sought is void, he can take advantage of its invalidity. Of mere irregularities, or reversible errors, he can not complain. — 3 Brick. Dig. 777, § 25.

At the threshold of the trial, the claimants contended that the attachment was void, and should be dissolved. The first ground on which they rest this contention is, that the suit, as they claim, is not against the partnership, but against the individuals composing it; and that, consequently, only the individual property of the defendants could be attached. ' This argument is presented in two aspects, the first of which is, that the suit, as originally framed, was against O. B. Price and J. S. Price as individuals, and not as a partnership. In suing out this process, alike in the affidavit and in the attachment, the defendants are described as “O. B. & J. S. Price, partners under the style of Price Bros.” A judgment and execution following this description of the defendants would be a judgment and execution against the partnership, and against each individual member named in the process. Under such process, the sheriff would be authorized to seize both partnership effects, and the individual property of the several members, composing the firm.—Leinkauff v. Munter, 76 Ala. 194; Pearce v. Shorter, 50 Ala. 318. It is difficult to conceive how else process could be framed, so as authorize in one suit, and under one process, the seizure of the property of the partnership, and also of the individual members composing it.

In opposition to the principle stated above, the appellant relies on certain rulings of this court. Some of the expressions found in some of those cases may, as general propositions, be misleading; but, interpreted in the light of the facts in the particular cases, they are not opposed to what we have said. It should be premised, that our statute makes the obligations of partners joint and several, and permits the creditor to sue them jointly or severally, at his option. Code of 1886, § 2605; Haralson v. Campbell, 63 Ala. 278; Hall v. Cook, 69 Ala. 87; Hall v. Green, Ib. 368; Alexander v. King, 87 Ala. 642; Alexander v. Jones, at present term. In the case of Haralson v. Campbell, 63 Ala. 278, although the suit was against two persons, describing them as partners, the execution was against the two describing them as individuals, and not stating they were partners. The form of the judgment is not shown in the report. There was a motion to quash the execution, “because it directed the money to be made out of the individual effects of the defendants, and not out of the partnership property.” The Circuit Court overruled the motion to quash, and this court affirmed the judgment, saying: “In this case, the individuals are named and sued as such. The individual property of each partner is liable to seizure in satisfaction of this judgment.” We did not decide that the partnership effects were not also liable, nor could we have so decided, if the judgment and execution, like the complaint, had described the defendants as “partners under the name and style of W. J. Haralson & Co.” That question was not before us.

In the cases of Hall v. Cook, 69 Ala. 87, and Hall v. Green, Ib. 368, the defendants were sued as individuals, not describing them as partners. Those cases shed no light on the present one.

In Ladiga Saw-Mill Co. v. Smith, 78 Ala. 108, three persons were named and sued as partners, and only two were served with process. The Circuit Court rendered judgment against the three. This court corrected the judgment, and affirmed it against the two who had been served. What effect that form of judgment would have in the matter of its collection, was neither considered, nor presented. None of the cases relied on support the view of appellant.

The second aspect of the question we are considering arises on the following state of facts: The attachment, as we have shown, was sued out against “O. R. & J. S. Price, partners under the style of Price Bros.” The particular statutory ground of the attachment was, that “the said Price Brothers have fraudulently disposed of their property.” The attachment was sued out January J, 1889. Our statute— Code of 1886, § 2937 — requires that, when an attachment is levied, and defendant is a resident of the county, he must be notified of the. levy by written notice, either served on him, or left at his residence. Written notice was -served on J. S. Price. Other provisions are made for notice, if the defendant resides out of the county, but in the State.

The conveyance which the attachment in this case attacks as fraudulent, was signed Saturday night, December 29, 1888, and was delivered to the purchasers Monday morning, December 31. On Sunday morning, December 30, O. R. Price left his place of residence in Marengo county, with the avowed purpose of going to Florida, and he has never returned. This was before the attachment was sued out, and, of course, no actual notice of its levy was, or could be served on him. As to him there was publication made, under the section of the Code to be presently considered, before the return term of the attachment.

• Section 2936 of the Code reads as follows: “When an attachment is sued out against a non-resident of the State, the writ shall be returned to the clerk of the court as soon as levied upon the property of the defendant; and thereupon the clerk' shall cause a notice of the attachment and levy on the defendant’s property to be advertised, once a week for three suecesssive weeks, in some newspaper, a copy of which must be sent by mail to the defendant, if his residence is known, or can be ascertained; and if such publication is perfected twenty days before the next term of the court, the case shall stand for trial at that term; otherwise, at the succeeding term, or any term after the perfection of such publication twenty days prior thereto.”

The appellant contends that this section of the Code refers, and only refers, to cases in which non-residence is made the ground for suing out the attachment, and that it is not applicable to attachments based on any of the other statutory grounds. — Code of 1886, § 2930. Seasoning from this postulate, he contends, that O. E. Price is not made a party to the original suit against Price Bros.; that the suit is practically discontinued as to him, and remains only a suit against J. S. Price individually; that under an attachment against J. S. Price individually, only his individual property can be levied on or held under such attachment; that the partnership property is released from the levy, and that the attachment has thereby become void as to the partnership property involved in this suit. We differ entirely with counsel, and hold that section 2936 of the Code, both in letter and spirit, applies to all cases of non-residence of the defendant, no matter which statutory ground is made the basis of the attachment.

Before beginning the trial of this case, the original suit of Pollock & Co. v. Price Bros, was entered upon, the jury organized, and the case partially put before them. At that stage of the trial, the plaintiff took a voluntary nonsuit, and withdrew the case from the jury. Immediately afterwards, on motion of plaintiffs, the court reinstated the case on the docket, and it was then continued. The appellants contend that this was so far an end of the suit against Price Bros, as to destroy the lien of the attachment levy, and that the same thereby became null and void. It can not be gainsaid, that a successful issue of the main suit — the one in which the attachment issues — is necessary to the final establishment of the lien. A failure of that suit, by a judgment for the defendant, is a discharge of the lien created by the levy. Until judgment recovered, the lien is provisional.—1 Brick. Dig. 162, §§ 108, 113; Clapp v. Bell, 4 Mass. 99; Suydam v. Huggeford, 23 Pick. 465; Franklin Bank v. Bachelder, 39 Amer. Dec. 609, note.

In Brown v. Harris, 2 G. Greene, 505; s. c., 52 Amer. Dec. 535, an attachment returnable to a justice of the peace had been levied. On the day set for the trial, the plaintiff failed to appear, and was nonsuited. . There was a statute in that State — Iowa—allowing such nonsuit to be set aside on showing, if moved for within six days. Motion was made within the six days, the nonsuit set aside, and judgment rendered for the plaintiff. The question was, whether setting aside the nonsuit restored the lien, and the court ruled it did not. In Harrow v. Lyon, 3 G. Greene, 157, the case of Brown v. Harris was followed, the same judge delivering the opinion. These decisions were rendered in 1850, 1851. In the case of Danforth v. Carter, 4 Iowa, 230, decided in 1856, the same court shook the authority of these cases.

In the case of O'Connor v. Blake, 29 Cal. 312, the justice before whom the attachment was pending nonsuited the plaintiff. Subsequently he set aside the nonsuit, and the parties being present, he tried the case, and gave judgment for the plaintiff. The court held that the justice had no authority to set the nonsuit aside, and that his unauthorized act in doing so did not revive the lien which had been lost by the nonsuit.. . This decision was rested, it will be seen, on the absence of authority in the justice to set aside the non-suit.

This court, as well as the courts of many other States, holds that a failure of the attachment suit, and subsequent judgment for the defendant, are prima facie a discharge of the lien; yet, if on appeal the judgment is reversed, the lien continues.—Danforth v. Carter, 4 Iowa, 230; Hackett v. Pickering, 5 N. H. 459; Caperton v. McCorkle, 5 Grat. 177.

It is said that the judgments of a court, during the term at which they are rendered, are in the breast of the judge. They are manifestly so far under his control, as that he can modify them, or set them aside; and his last record utterance in any given cáse is the judgment in that case, in whole or in part, unless it is void on its face. Of course, in a proper case, it can be reviewed, and may be reversed, after which it ceases to be the judgment; but, until reversed, it determines the status of the case, and of the parties to it.. We can not assent either to the reasoning or conclusion of the court in Brown v. Harris, 2 Greene, supra. We hold that the non-' suit taken in the case of Pollock & Co. v. Price Bros., set aside as it was before the term of the court at which it was taken, left the lien of the attachment levy as it existed before tlie nonsuit. There was no error in overruling the motion to dissolve the attachment, or in refusing to declare the levy void.

The Circuit Court erred in allowing the affidavit for attachment to be given in evidence by the plaintiffs. It was an ex-parte statement, and we know of no rule of evidence for letting it in.—Taliaferro v. Lane, 23 Ala. 369.

At the request of the plaintiffs, the court charged the jury that, if they believed the evidence, they must find the property levied on subject to the levy of the attachment. The question before the jury was, whether or not there was fraud in the alleged sale to Dollins and Mrs. Adams. The rules for giving or refusing the charge requested have been so often declared that it would almost seem unnecessary to repeat them. — 3 Brick. Dig. 109. The general charge, like a demurrer to evidence, is an admission, against the party invoking it, of the truth of every fact which the adversary’s testimony tends to prove, and of every reasonable inference that can be drawn from such testimony, conceding it to be true.

Taking the record for our guide, we suppose the alleged indebtedness of Price Brothers to their sister, Mrs. Adams, claimed to have been three thousand dollars, was the subject of the severest contest of fact which the trial developed.The general charge ignored that contest — ignored all the circumstances relating to it brought out on the trial — ignored the relationship of the parties, and conceded that Price Brothers did owe her the three thousand dollars. There was no denial of the indebtedness to Richardson, secured by mortgage, which the purchasers assumed to pay; and the testimony proved that the contract price, six thousand dollars, was about a fair estimate of the value of the real and personal property purchased. This narrowed the elements of fraud, implied in the general charge, to two items; the alleged indebtedness of six hundred dollars from Price Brothers to Dollins, and the fact that in making up the purchase price the notes of the purchasers, aggregating twelve hundred and eighty dollars, were accepted and computed. As to the alleged indebtedness to Dollins, if the testimony be true, it was a debt, liable to be reduced in certain contingencies.—Liddell v. Chidester, 84 Ala. 508, and citations. The notes given to make up the amount of the purchase were not delivered to Price Bros., if the testimony be believed. They were placed in the hands of another, to be used.in payment of other debts of Price Bros.—Rankin v. Vandiver, 78 Ala. 562. These two facts do not necessarily, and per se, stamp the transaction as fraudulent, as matter of law. Like the other facts in the case, they were for consideration by the jury, under proper instructions. The court erred in giving the general charge.

In the defense relied on in this case, the claimants set up that they purchased the goods in payment of debfs due from Price Bros, to them severally. Whether those debts existed as claimed, was a very important inquiry. Upon that inquiry, and upon all other inquiries of fact, we disclaim all intention of intimating any opinion. These are questions for the jury, under proper instructions. We have so often declared the rules which should govern in such trials as this that we will not repeat them. We cite several of our decis^ ions which bear on the questions raised—Hubbard v. Allen, 59 Ala. 283; Hamilton v. Blackwell, 60 Ala. 545; Harrell v. Mitchell, 61 Ala. 270; Thames v. Rembert, 63 Ala. 561; Donegan v. Davis, 66 Ala. 362; Lipscomb v. McClellan, 72 Ala. 151; Crawford v. Kirksey, 55 Ala. 293; Lehman v. Kelly, 68 Ala. 192; Seaman v. Nolen, Ib. 463; Rankin v. Vandiver, 78 Ala. 562; Levy v. Williams, 79 Ala. 171; Hodges v. Coleman, 76 Ala. 103; Meyer v. Sulzbacker, Ib. 120; Leinkauff v. Frankle, 80 Ala. 136; Tryon v. Flournoy, Ib. 321; Bray v. Comer, 82 Ala. 183; Apfel v. Crane, 83 Ala. 312; Carter v. Coleman, 84 Ala. 256 ; Jefferson Co. v. Savings Bank, Ib. 529; Roswald v. Hobbie, 85 Ala. 73; Stix v. Keith, Ib. 465; McDowell v. Steele, 87 Ala. 493.

The first chaage asked by claimants, should have been given. Charges No. 2 and 4 were misleading. Charge No. 3 has the word “no” improperly in it, probably by miscopy. With that word omitted, it should be given.

Reversed and remanded.