Burgess v. Martin
| Decision Date | 16 June 1896 |
| Citation | 20 So. 506,111 Ala. 656 |
| Parties | BURGESS ET AL. v. MARTIN. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Pickens county; W. H. Tayloe Chancellor.
Action by D. R. Burgess & Co. against J. K. P. Martin. From the decree, plaintiffs appeal. Affirmed.
The bill in this case was filed by the appellants against the appellee, J. K. P. Martin, as surviving partner of the firm of A. J. & J. K. P. Martin, and prayed for a discovery of the assets of said firm, for the appointment of a receiver to take charge thereof, and to subject certain notes, accounts and choses in action to the payment of complainants' claim. The appeal is taken from a decree of the chancellor overruling certain demurrers, and sustaining others, and in discharging the receiver.
Daniel Collier and Nesmith & Nesmith, for appellants.
Johnston & Curry and E. D. Willett, for appellee.
The abstract shows that there was a submission to the chancellor "upon demurrer and other pleadings and the testimony as condensed above," and that subsequently the chancellor rendered a decree "overruling demurrers 1, 2, 3, and 10 and sustaining those from 4 to 9, inclusive, and sustaining the appeal [from the register's order appointing a receiver], and discharging the receiver." The abstract nowhere and in no way informs us what specifications of demurrer were set forth in assignments of demurrer "from 4 to 9, inclusive"; and we are therefore unable to review the decree sustaining said assignments. O'Neal v. Simonton (Ala.) 19 So. 8; Iron Co. v. Andrews (Ala.) 21 So. 440.
It is shown, however, that one ground of demurrer was that the bill, which sought discovery, appointment of receiver, etc was not properly verified. We are not advised whether this assignment was among those numbered from 4 to 9, nor what the action of the court was upon it; but we deem it not improper to say that this objection to the bill is well taken. The allegations of the bill are sworn to by a person named "as true to the best of his knowledge, information, and belief." This, upon the construction most favorable to complainants, means that the affiant has knowledge that some of the averments of the bill are true; that, while he does not know, he has been informed and believes, that others of the averments are true; and that, as to yet other averments, he has neither knowledge nor information, but, without knowing the facts or ever having been informed of...
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Robertson v. State
... ... claimed by the petitioner here that this affidavit is wholly ... insufficient to support the decree adjudging him in contempt ... In Burgess & Co. v. Martin, 111 Ala. 656, 20 So ... 506, the Supreme Court, speaking through Mr. Justice ... McClellan said: ... "The allegations of the ... ...
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Liverpool & London & Globe Ins. Co. v. McCree
... ... O'Neal v. Simonton, 109 Ala. 369, 19 So. 8; ... Hobbie & Teague v. Andrews, 111 Ala. 176, 19 So ... 974; Burgess & Co. v. Martin, 111 Ala. 656, 20 So ... 506. These cases were subject to the rule requiring of ... counsel an abstract of the record. In the case ... ...
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Board of Water and Sewer Com'rs of City of Mobile v. Spriggs
...knowledge nor information of their truth,' and, 'an affidavit of belief in their truth simply amounts to nothing.' Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506; Brooks v. Everett, 271 Ala. 380, 124 So.2d 100. The verification in the instant case is merely that affiants say that the fac......
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