Blanks v. West Point Wholesale Grocery Co.

• Decision Date: 26 May 1932
• Docket Number: 5 Div. 105.
• Citation: 142 So. 49,225 Ala. 74
• Parties: BLANKS v. WEST POINT WHOLESALE GROCERY CO.
• Court: Alabama Supreme Court

142 So. 49

225 Ala. 74

BLANKS v. WEST POINT WHOLESALE GROCERY CO.

5 Div. 105.

Supreme Court of Alabama

May 26, 1932

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Action by the West Point Wholesale Grocery Company, against J. E Blanks. Judgment for plaintiff, and defendant appeals.

Affirmed.

C. E Fuller, of Lafayette, for appellant.

W Howell Morrow, of West Point, Ga., and Denson & Denson, of Opelika, for appellee.

KNIGHT J.

It appears from the record in this cause that appellant was, prior to the commencement of the proceedings in this cause, on his petition duly adjudged a bankrupt in and by the United States District Court for the Eastern Division of the Middle District of Alabama, and that the administration of his estate is pending in that court.

It further appears that on April 14, 1924, appellant executed to appellee his promissory note for $2,486.15, payable one day after date; that in and by said note appellant waived his right to personal property exemptions as against the collection of the debt evidenced by said note. It is further made to appear that, after the appellant was adjudged a bankrupt, the appellee duly filed its proof of debt or claim in said court. Thereafter the said court allowed said claim, ascertaining and fixing the amount due appellee at $3,447.15. This judgment of said court was not appealed from, nor has it ever been reviewed, but remains, as averred in the complaint, unrevised, and is, so far as is disclosed to the contrary, a final adjudication of said court upon said claim.

After the rendition of said judgment allowing said claim, upon the sworn petition of the West Point Wholesale Grocery Company, appellee here, the said court made and entered the following order in said cause:

"West Point Wholesale Grocery Company, petitioner, having this day presented its sworn petition averring that the bankrupt is indebted to it by promissory note containing waiver of exemption, executed July 14, 1924, in the principal amount of $2486.15, payable one day after date, upon which payment of $117.50 has been made; and it further appearing that the said claim of the petitioner has been allowed on said note in this matter in the amount of $3447.15; and petitioner having prayed in its petition that payment of the exemptions heretofore set apart to the bankrupt in money be withheld and that it be given permission to proceed in said state court to establish the waiver of exemptions contained in said note; and it appearing to the court that petitioner is entitled to the relief prayed for:

"It is ordered that the trustee be, and he is hereby directed to withhold the payment of the amount set apart to the bankrupt as exempt to him pending the proceedings in the state court on said note by petitioner, and that permission is hereby granted to petitioner to file its suit in the state court on said note against said bankrupt for the purpose of establishing the waiver of exemptions contained in such note, and take such other proceedings as may appear necessary for the establishment of said waiver and the enforcement

of the rights of petitioner in the premises."

This order was made on the 25th day of June, 1930. Thereafter, on the 23d day of July, 1930, the appellee filed this suit in the circuit court of Chambers county against the appellant on said note, and in the complaint averred that in said note defendant waived his right to personal property exemption. The plaintiff, in said suit, stated his cause of action in two counts. To this suit the defendant therein, appellant, filed pleas 1 and 2. The first plea we may treat as a plea of the general issue, though not in proper technical form a plea of the general issue in such an action. The second plea was one of payment, alleging that he (defendant) "has paid the debt (or demand), for the recovery of which this suit was brought, before the action was commenced." This plea is in the form prescribed by the Code, § 9532, form 38.

After these pleas were filed, the plaintiff amended his complaint by striking both counts of the original complaint, and by inserting in lieu thereof counts A and B. Count A claims no amount of money of the defendant, and is but a recital of the execution of the above-mentioned note, the adjudication of the bankruptcy of the defendant, the filing of proof of the debt in the court of bankruptcy, and the allowance of the same in the sum of $3,447.15, and the permission given the plaintiff to proceed in the state court and file its suit on said note and to take such other proceedings as might be necessary to establish and enforce its rights; and ends with this averment: "Wherefore plaintiff brings this suit."

Count A is in no proper sense a complaint. Not so, however, with count B. This count sets forth a proper complaint upon the promissory note, with the following additional averments: "And plaintiff avers that on March 25, 1930, the defendant, on his petition filed in the District Court of the United States for the Middle District of Alabama, Eastern Division, was in and by said court adjudged a bankrupt a certified copy of said adjudication is hereto attached marked exhibit A and made a part of this count, that thereafter plaintiff filed its proof of debt or claim on said note in said court, a certified copy of which is hereto attached marked exhibit B and made a part of this count; that thereafter and on April 22, 1930, the said court rendered a judgment, which is unrevised, allowing plaintiff's said claim in the amount of $3447.15 a certified copy of said judgment is hereto attached marked exhibit C and made a part of this count; that thereafter plaintiff secured permission of said court to proceed on said note in the state court by its order dated June 25, 1930, a certified copy of which is hereto attached and marked exhibit D and made a part hereof, hence this suit."

The defendant moved the court to "strike from the file and from the records in said cause plaintiff's amendment to the complaint," assigning a number of grounds, one of the grounds being that the amendment was an entire departure from the complaint as originally filed in said cause; the other grounds being that the complaint seeks to have the court determine merely the question as to whether the defendant waived, in writing, his right to claim personal property exemptions, "without determining or deciding whether or not the defendant is indebted to the plaintiff on, or by means of said alleged note," and without giving defendant "an opportunity to have determined and adjudicated the questions as to whether or not he owes the plaintiff anything, or is indebted to plaintiff in any sum on said alleged promissory note." There are other grounds set forth in the motion which we deem unnecessary to mention. The motion is directed against the entire amendment, not against each count separately. Had a proper motion been made to strike count A, it may be (though it is not decided) that it should have been sustained, as that count is not a complaint, but a recital of facts, and claims or prays for no relief or recovery against the defendant.

Count B sufficiently states a cause of action against defendant, and was not a departure from the cause of action set forth in the original complaint. The said amendment refers to the same transaction and between the same parties as the original complaint, and therefore, under the provisions of section 9513 of the Code, the court properly allowed the amendment to be made. Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655; Nashville, etc., R. v. Abramson-Boone Produce Co., 199 Ala. 271, 74 So. 350; Gaines v. B. R., L. & P. Co., 164 Ala. 6, 51 So. 238; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71.

If the defendant conceived that any one of the counts of the complaint was defective, he should have raised the question by demurrer, not by motion to strike. The rule stated in the case of Brooks v. Continental Ins. Co., 125 Ala. 618, 29 So. 13, 14, has been adhered to by this court, and in the Brooks Case this rule is thus stated: "That where a pleading, though not frivolous, unnecessarily prolix, or irrelevant, is supposed to be substantially defective, as where the facts alleged do not constitute a cause of action or defense, the objection must be raised by demurrer." Sledge v. Swift, 53 Ala. 114; Brooks v. Continental Ins. Co., supra; Powell v. Crawford, 110 Ala. 294, 18 So. 302; Lindsay v. Morris, 100 Ala. 550, 13 So. 619; Wefel v. Stillman, 151 Ala. 249, 44 So. 203. The defendant did not test the sufficiency of either of the counts by demurrer.

To the complaint, the defendant filed pleas 2, 3, and 4, in addition to the general issue. While plea 2 was filed before the complaint was amended, yet the parties and the court treated the same as filed to the complaint as amended, and we shall here so regard and treat the plea.

It is insisted by the appellant that the order made by the referee in bankruptcy allowing plaintiff's claim, as represented by the note, was in no proper sense a judgment of the court against the defendant, but rather a direction that the plaintiff creditor should be allowed to participate in the distribution of the general assets of the bankrupt's...