Montgomery-Moore Mfg. Co. v. Leeth

56 So. 770, 2 Ala. App. 324, 1911 Ala. App. LEXIS 74

• Court: Alabama Court of Appeals
• Decided: November 30, 1911
• Status: Published

Opinion

PELHAM, J.

The appellant and other creditors of P. S. McCutchen & Son had attachments issued out of the circuit court of Cullman county and levied on the stock of goods and other property while it was being moved by appellee from McCutchen’s store in Bailey-ton, Ala., to the store of the appellee in Cullman, Ala. The appellee, who had purchased the stock of goods and other property from McCutchen & Son executed a claim bond and affidavit, and a trial of the right of property was had; the appellant being the plaintiff in the court below, McCutchen & Son, defendants, and appellee, G. S. Leeth, the claimant. The contention of the claimant is that he bought the property from Mc-Cutchen & Son, having paid an adequate consideration, and without knowledge or notice that McCutchen & Son sold the property for any fraudulent purpose or to hinder or delay their creditors; while the appellant, the plaintiff below, contends that the sale was with covinous intent and for the purpose of hindering, delaying or defrauding creditors, and that the claimant, Leeth, either participated in the fraud and had actual knowledge of a fraudulent intent on MeCutchen’s part or had knowledge or notice of such facts and circumstances as would put him on inquiry which, if pursued, would have brought knowledge of the fraudulent intent to him. This is the second appeal in the ease. —Montgomery-Moore Mfg. Co. v. Leeth, 162 Ala. 246, 50 South. 210. The controverted propositions involved in. the case on the trial related to the value of the property sold by McCutchen & Son to Leeth, and -whether or not it was sold by McCutchen to Leeth with-the fraudulent-intent alleged, and, if so, whether or not Leeth had no- , tice of such fraudulent intent on the part of the seller to hinder, delay, or defraud his creditors.

The appellant propounded interrogatories to the appellee under the statute (Code, § 4049), and, before entering on the trial, made a motion for a judgment against the appellee under section 4055 of the Code of 1907 for failing to answer the fifth, sixth and tenth interrogatories, which the court ruled had not been sufficiently answered. The motion for judgment on the ground that there had been a failure to fully answer the interrogatories was overruled, and the court ordered full answers to be made, allowing the claimant and his attorney to withdraw to a jury room, against the objection of the appellant, where answers to the interrogatories were prepared.

There is a discretion conferred on the court by section 4055 of the Code of 1907 as to which mode it will adopt when full answers have not been filed (Culver v. Ala. Mid. Ry. Co., 108 Ala. 330, 18 South. 827), and the action of the court in taking a recess or waiting until full answers were prepared under the court’s direction and filed instead of continuing the case and delaying the trial to a subsequent day or term for full answers to be made to the interrogatories, as the court had the undoubted right and authority under the statue to do, constitutes no abuse of the discretion. In effect, the recess was a continuance for a sufficient time to allow full answers to be prepared and filed. This action of the court was entirely proper and worked no delay in the trial to another day or term, but expedited the trial of the case without injury or prejudice to any of appellant’s rights. The purpose of the statute is to give parties in civil actions at law a remedy or right in the nature of a discovery as known to the courts of chancery (Goodwater Warehouse Co. v. Street, 137 Ala. , 34 South. 903); and, if the answers are not full or are evasive, the remedy is under section 4055 of the Code which gives to the court a discretion to either attach the party in default and bring him into court and require full answers to be made in open court, or to continue the cause until full answers are made, or to direct a nonsuit or judgment by default as a penalty in consequence of the failure or default. In the case before us the party answering the interrogatories seems to have been personally present in the court, and there was no necessity for an attachment to cause him to come into court and answer fully. Moreover, the party was examined on the trial of the case as a Avitness, and the parties to the suit had full opportunity to avail themselves of the right to propound questions to him upon all matters Avithin his knowledge touching the case, which, it would appear from the evidence set out in the bill of exceptions, was not scantily taken advantage of, and the rights of the parties could hardly be said to be prejudiced by some of the answers to the interrogatories not being based entirely upon the personal knoAvledge of the party and not responsive in all particulars to the interrogatories propounded, when it appears the party ansAvering the interrogatories was examined fully and in detail orally on all these matters as a Avitness on the trial. The. ansAvers to the interrogatories appear to be a reasonably fair attempt to be responsive and to fully state the knowledge of the party in reference to the matters inquired about, and show no disposition to evade answering any question propounded, as we read them. It is plain that appellant suffered no detriment from the denial of his various motions relating to the answers to the interrogatories propounded under the statute to the appellee, and the court committed no error in overruling them.

In excluding, on the motion of the appellee, the statement made by the witness Williamson “that fellow asked if Mr. Leeth was coming',” the trial court was but conforming to the ruling of the Supreme Court on the former trial. The statement was not shown by the evidence introduced on the tidal up to the time of the court’s ruling to be admissible as part of the res gestae, nor do we think the evidence subsequently introduced, as pointed out by appellant and contended for in his brief, made the statement admissible or relieved it from being immaterial to the issues.

The trial court can not be put in error for sustaining the objection to the question asked the witness Williamson as to the major part of the stock consisting of shoes, as the question was leading and suggestive. Allowing leading questions is a matter largely, if not entirely, within the discretion of the trial court.—Barlow v. Hamilton, 151 Ala. 634, 44 South. 657.

Appellee’s objection to the question asked the witness Griffin by appellant, “Did you make any further negotiations about buying it?” was properly sustained. Thé question seemingly called for a conclusion of the witness, and it was not shown or in any way made to appear to the court what facts the plaintiff expected to elicit as.an answer. Unless it clearly appeal’s that the answer would be admissible and relevant, it is not error to sustain an objection to the question.—Brent v. Baldwin, 160 Ala. 635, 49 South. 343; Pittman v. State, 153 Ala, 1, 45 South. 245.

The uncommunicated purpose of the witness Whaley• in keeping a guard over the goods was incompetent and properly excluded on motion of the appellee. It is not; permissible to allow a witness to testify to his undisclosed intention.—Barnewell v. Stephens, 142 Ala. 609, 38 South. 662; Reeder v. Huffman, 148 Ala. 472, 41 South. 177; Smith v. State, 145 Ala. 17, 40 South. 957.

The statement of the witness Allgood “he seemed to be looking for shells” was a mere conclusion of the witness, and clearly inadmissible. A witness should not be allowed to testify what another person seemed to be doing or trying to do.—B. R. L. & P. Co. v. Randle, 149 Ala. 539, 43 South. 355. Even had it been error to ex-elude this conclusion of the witness Allgood, it was without injury, as the witness Leeth, when examined later, tesified that on the occasion referred to he was looking for shells. Nor was the evidence of Allgood on this matter of any importance or calculated to shed any light on the issues before the court.

The objection of the appellee to the questions asked the witness Griffin upon being recalled as a witness for the appellant in reference to a conversation with Mc-Cutchen was property sustained. The claimant was not present, and the conversation was with reference to a separate and different transaction from the sale in question of McCutchen to claimant. The conversation is not shown to be a part of the same conversation brought out as new matter when the witness was under cross-examination in his examination in chief, and there was nothing to put the court on notice that the facts sought to be proven were part of a conversation which had been brought out as new matter while the witness was on cross-examination on a prior occasion; nor does this fact affirmatively appear from the testimony set out or from the statement made by the appellant’s counsel on the trial, but, on the contrary, the counsel on the trial stated a different reason to the court as a purpose for offering part of this evidence, and there was no statement or.other circumstance informing the court that it was part of a previous conversation brought out by appellee that was being inquired about, and the question asked gives no indication of the fact.

The objection to the question seeking to show the kind of goods, etc., in the store in July prior to the sale in January following was properly sustained, as proof of the value of the goods in the store in 'July was too remote in time to be taken as a basis on which to form an estimate of the value of the goods that were in the store in January at the time of the sale in question.

The declarations testified to by Leeth as having been made to him by McCutchen while negotiating for the purchase in question were admissible as being part of the transaction the bona fides of which was in issue. It was also competent as part of the same conversations that had been brought out by appellant when it introduced the deposition of McCutchen in evidence. The appellant had previously also introduced the answers to the interrogatories propounded to Leeth containing practically the same statements. And that both the appellant and appellee regarded these declarations as part of the res gestae of the transaction on the former .as well as this trial is evident from the interrogatories propounded by appellant to Leeth and McCutchen, and the introduction of Leeth’s testimony given on the former trial in this trial as to these declarations for the purpose of contradiction.

Appellant’s objection to the question asked the witness Leeth with reference to the depreciation in value of a remnant stock of goods or secondhand stock or bankrupt stock on the ground that there was no evidence of the stock being a bankrupt stock is not available, in that it goes to the entire question and not alone to the question of a bankrupt stock, and there was evidence upon which the hypothesis of a remnant stock or certainly a secondhand stock could he correctly predicated. The question and answer included an estimate of value upon a remnant or secondhand stock-of goods; and, there being evidence to support such a hypothesis, and the objection going to the entire question, the court properly overruled it. On the former appeal, the Supreme Court held it to be error to allow proof of a remnant stock of goods in absence of proof that the stock was a remnant stock, but the bill of exceptions on this appeal shows Leeth testified that it was a remnant stock of goods. If part of an answer is admissible, an objection to the question as a whole may be overruled. The court is under no duty to separate the legal from the illegal.—Weaver v. State, 139 Ala. 130, 36 South. 717; Longmire v. State, 130 Ala. 66, 30 South. 413; Hill v. State, 146 Ala. 51, 41 South. 626.

Proof of the sále of the cow was merely a circumstance and properly allowed for the purpose of being considered in connection with all the other evidence to prove the value of the animal. Besides, the exception to the action of the court in overruling the appellant’s objection is shown to have been taken after the witness answered the question, and is not available.

The written charges, respectively, asked by the different parties, some of which are given and some refused, are not numbered or designated as required, and, while not fatal to the charges, it renders it difficult to refer to and discuss them properly without some embarrassment.—Gibson v. State, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96; So. Ry. Co. v. Cofer, 149 Ala. 565, 43 South. 102.

The first charge appearing in the record as requested by appellant and refused by the court, and made the ground of the thirty-fourth assignment of error, can be read as not including in the hypothesis, but stating as a fact, that McCutchen was selling his property and converting the proceeds into money for the purpose of getting it beyond the reach of creditors, a controverted fact on which the evidence was in conflict.

The charge does not limit the property sold by Mc-Cutchen to the property in question that was purchased by Leeth, but only predicates “his property,” and the sale of other property by McCutchen for the purpose of converting it into money with the intent to place the proceeds derived from its sale beyond the reach of creditors would not, as a matter of law, make the sale of different property at or about the same time to Leeth void. The evidence in the bill of exceptions shows that McCutchen had made sales of other property at or about the-time of the sale to Leeth. The court was not in error in refusing the charge.

The second charge set out as requested by appellant and refused by the court, and made the ground of the thirty-fifth assignment of error, is subject to the same ■criticism as made to the charge .above discussed as to not limiting the property sold to that purchased by Leeth. The charge is not a clear statement of legal principles, such as would put the court in error for refusing it, and the legal principles contained in the charge are covered by other charges given at appellant’s request.

The third charge set out, and made the ground of the thirty-sixth assignment of error, is faulty for the same reasons given in discussing the first refused charge.

The fourth charge set out as refused, being the thirty-seventh ground of error assigned, also predicates “his property” as sold by McCutchen, without- regard to its having been the property purchased by Leeth, being sufficient as a. matter of law to make the sale to Leeth void. The evidence set ont in the bill of exceptions shows that McCntchen had sold off a part of the stock of goods to other parties before selling to Leeth. Mc-■Outchen testified: “The stock had been reduced a good deal before we sold to Leeth. ' I should think $300 or $400 and maybe $500.” He also testified: “I sold the horse to Gns Gay. * * * I had about 1,000 pounds of seed cotton, * * * which I carried to Cullman and sold. I sold the telephone outfit through my son to a man in the community. * * '* I sold practically all the property I owned, and left Baileyton, Ala., the same day I sold to Leeth. * * * I did sell three yearlings to a man by the name of Scott. We disposed of about all of our property about the time we sold the stock of goods to Leeth.” The charge fails to restrict the. right of recovery on this proposition to the property sold by Mc-Cutchen to Leeth, and the evidence shows the sale of property to other parties by McCutchen to which the principle would not apply. For the reasons given, the court cannot be put in error for refusing the charge, and it is unnecessary to consider other objections urged, and we are not to be understood as passing on those questions.

There was no error committed by the court in giving, a.t the instance of'the appellee, the two written charges set out in the record. One of these charges is exactly the same charge passed on by the Supreme Court as not constituting reversible error on the-former appeal, and the other states a correct proposition of law.

After -a careful examination of all the evidence set out in the bill .of exceptions, we are unwilling to say that the trial court was in error in'refusing to set aside the. verdict and grant appellant a new trial. It is not enough in reviewing the. question here'that the verdict was against what appear^ to be the weight of the evideuce to put the trial court in error for refusing to grant a new trial, as the court, having had the witness before it, as has often been said, had a better opportunity of judging of their credibility, and the weight to be accorded their testimony. It has been the settled law of this state since the rule was laid down in the case of Cobb v. Malone, 92 Ala. 630, 9 South. 738, that to authorize a reversal by this court of a judgment of the trial court denying a motion for a new trial there must have been, a plain and palpable failure of the evidence to. support the verdict.—Cobb v. Malone, supra; Bingham v. Davidson, 141 Ala. 551, 37 South. 738; Lyon v. McGowan, 156 Ala. 462, 47 South. 342; Montgomery T. Co. v. Haygood, 152 Ala. 142, 44 South. 560. We are unable to say, after allowing all reasonable presumptions in favor of its. correctness, that the preponderance of the evidence against the verdict is, so decided as to clearly convince the court that it is wrong and unjust.

The assignments of error are not well taken, and the case will be affirmed.

Affirmed.