McDuffie v. Lynchburg Shoe Co.

59 So. 567, 178 Ala. 268, 1912 Ala. LEXIS 383

• Court: Supreme Court of Alabama
• Decided: June 29, 1912
• Status: Published

Opinion

SAYRE, J.

This bill was filed by several creditors of the appellants under section 3739 of Code, which authorizes creditors without a lien to file a bill in chancery to subject to the payment of their debts any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed by their debtor. The statute does not authorize a creditor to maintain a bill before the maturity of his debt. — Jones v. Massey, 79 Ala. 370; Freider v. Leinkauff, 92 Ala. 469, 8 South. 758.

The averment of the amended bill is that prior to. the date of the conveyances attacked, a date prior to. the filing of the bill, defendants “became indebted to. your orators,” in amounts which are stated, and that on said date defendants “owed the debts above set. forth and owed other debts to various creditors.” The chancellor overruled a general demurrer, and the point, urged on appeal is that there is a failure to aver that. complainants7 debts were due and unpaid at the time of the filing of the bill.

Since the Code of 1907, the general demurrer, previously prohibited by statute, performs the office of testing the equity of the bill. It goes to the substance of the bill, and defects of form will not be considered under it. Objections to form must be made specially, and must point out the defect with reasonable certainty and directness. The general demurrer accomplishes the purpose theretofore reached by the motion to dismiss for want of equity. Probably the only purpose of the change was to obviate the rule, which had been established in this court, that only when it appeared from the bill that amendment could be made which would entitle the complainant to relief, as where facts were illy pleaded, would such amendment be considered as made and the motion to dismiss for want of equity denied. However that may be, upon general demurrer, as formerly upon a motion to dismiss for want of equity, defects of form will be considered as amended. —Singo v. Brainard, 173 Ala. 64, 55 South. 603.

Averment that a debt is owing is not the complete equivalent of an averment that it is due and unpaid. To say that one owes a debt means simply that he is obliged or bound to pay, and that may be said as well of an immature as of an overdue obligation. — Musselman v. Wise, 84 Ind. 248; Fairchild v. King, 102 Cal. 320, 36 Pac. 649.

There can be no mistake, however, about the fact that the attempt of the pleader was to exhibit complainants’ status as creditors in such sort as to confer upon them authority and right to maintain the bill. That this was done defectively would have been decreed on special demurrer directing the attention of the court to the particular wherein the bill was defective. Such was the case and such the decree in Jones v. Massey and Freider v. Leinkauff, supra. But it results from the commonly accepted principles of pleading stated above that on general demurrer the court properly considered the bill as amended in the respect under consideration.

Affirmed.

All the Justices concur.