Jackson v. Roanoke Banking Co.

72 So. 530, 197 Ala. 349, 1916 Ala. LEXIS 67

• Court: Supreme Court of Alabama
• Decided: July 6, 1916
• Status: Published

Opinion

GARDNER, J.

(1) While there may be some irregularity in respect to the assignments of error and other matters in regard to the appeal, we are persuaded that, giving to our rules a liberal construction, there has been a substantial compliance with their terms in this case, and we therefore decline to dismiss the appeal. —Ogburn-Griffin Co. v. Orient Ins. Co., 188 Ala. 218, 66 South. 434.

Attachment was issued and levied in this cause upon the property of the defendants, the grounds thereof being a fraudulent disposition of their property, or that defendants were about to fraudulently4 dispose of their property or remove the same from the state.

(2) The plea in abatement put in issue these grounds of attachment. Some of the objections to the evidence, constituting several assignments of error, take the point that proof of any disposition of the property by defendants after the levy of the attachment was inadmissible, although such disposition followed closely after the attachment and may have tended to throw some light upon the question of fraud.

One of the contentions of the plaintiff in the court below was that J. H. Jackson (appellant here), one of the defendants and a partner of the firm against which the attachment-was issued, wras making a fraudulent disposition of the property at the time the attachment was sued out, and that he sold some of the property to his brother-in-law after the same had been levied.

The following quotation from the case of Snodgrass v. Bank of Decatur, 25 Ala. 161, 60 Am. Dec. 505, has found frequent reference in our subsequent decisions: “As a general rule, great latitude is allowed in the range of the evidence, when the question of fráud is involved. It is indispensable to truth and justice that it should be so; for it is hardly ever possible to prove fraud, except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after, the time at which the act of fraud is alleged to have been committed. No more precise general rule can be laid down in such cases.”

And as said in Nelms v. Steiner Bros., 113 Ala. 562, 22 South. 435, speaking to the same subject: “It is the bearing, not the independent force of the particular fact or circumstance, upon which its relevancy depends.”

See, also, Hall v. Santangelo, 178 Ala. 447, 60 South. 168.

We do not treat in detail the several questions presented oh the evidence. Suffice it to say, they have been carefully considered, and no reversible error shown.

Fraud was one of the most material issues involved in the trial of the cause, on the plea in abatement, and we are persuaded that the testimony offered comes within the principle of the cases above cited.

(3-5) The refusal of charges 1, 2, and 3 is also assigned as error. Charge 1 was argumentative and misleading and properly refused. Charge 2 was properly refused as requiring too high a degree of proof of fraud. We are of the opinion that the misleading tendency of charge 3 also justified its refusal. It was calculated to confuse the mind of the jury and to create the impression that they were not authorized to consider the evidence as to the disposition of the property by defendant, after the attachment was issued, in determining the question of fraud.

We find no reversible error in the record, and-the judgment is accordingly affirmed.

Affirmed.

Anderson, C. J., and McClellan and Thomas, JJ., concur.