Stern & Co. v. Butler & Stevens

123 Ala. 606

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

TYSON, J.

The appellants, having obtained a judgment against Nicholson, Blount & Co., can resort to the remedy afforded by a writ of garnishment to subject money in the hands of a transferee or grantee of their judgment debtor acquired- by such transferee or grantee in actual fraud of their rights as creditors.—Nicrosi v. Irvine, 102 Ala. 652;. Henry v. Murphy & Co., 54 Ala. 246; Price v. Masterson, 33 Ala. 483.

When the plaintiff in attachment by collusion with the insolvent debtor sues out his writ of attachment, obtains a judgment in pursuance of their collusive agreement in which is condemned the effects of the insolvent debtor, this is' as effectual a fraud against the rights of the debtor’s other creditors denounced by the statute as if the transfer of his property had been made by a conveyance upon a simulated consideration. It is actually fraudulent in securing to the plaintiff in attachment a preference which he is not entitled to, and which the courts will not recognize and enforce.—Comer v. Heidelbach, 109 Ala. 220; First Nat. Bank v. Acme White Lead & Color Co., ante p. 344.

The money in the hands of the sheriff, which was collected under the judgment rendered in the attachment proceedings instituted by the claimants in this cause, appellees here, Avas subject to the writ of garnishment sued out by the appellants and served upon the sheriff, if the attachment proceedings under AAdiich the appellees asserted their title to the money was fraudulent against the appellants. The judgment in the attachment cause was coram non jud-ice as to these appellants, and the trial court ei’red in not allowing them to introduce evidence that the attachment and judgment thereon was fraudulent as against them as creditors of the insolvent concern, Nicholson, Bloxxnt & Co.

The judgment is reversed and the cause remanded.