Burrow v. Berry

• Decision Date: 10 April 1924
• Docket Number: 8 Div. 577.
• Citation: 211 Ala. 78,99 So. 732
• Parties: BURROW ET AL. v. BERRY.
• Court: Alabama Supreme Court

99 So. 732

211 Ala. 78

BURROW ET AL. v. BERRY.

8 Div. 577.

Supreme Court of Alabama

April 10, 1924

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Bill in equity by T. R. Berry against J. B. and N. J. Burrow, to set aside a conveyance as a fraud upon creditors. From the decree respondents appeal. Reversed and remanded.

The nature of this case and its course to final decree, including the rulings of the trial court, are correctly shown by the opinion of Almon, J., as follows:

"Complainant on September 12, 1921, filed his original bill, alleging that he was the owner of a judgment against J. B. Burrow, rendered August 11, 1921, in the circuit court of Franklin county, for $116.20, together with costs of suit and containing waiver of exemptions. The relief sought in the bill is the setting aside of a conveyance of certain personal property from respondent J. B. Burrow to his mother, N. J. Burrow, the other respondent, said conveyance made Exhibit A to the bill of complaint, and, being attacked on the ground that same was in fraud of creditors, the complainant seeks in his bill to subject the personal property therein conveyed to the satisfaction of his judgment.

"After the overruling of demurrers to the bill, the respondents filed their answer on May 9, 1922, which answer admitted the indebtedness, the judgment, the relationship between the parties, and the execution of the conveyance sought to be set aside. The only allegations put in issue by the answer are whether or not the property conveyed constituted all or substantially all the property of J. B. Burrow, and whether or not the consideration in said conveyance was simulated and whether or not the purpose of same was to hinder, delay or defraud creditors. In such cases as this the relationship between the parties, the existence of the debt, and the conveyance having first been shown, the burden of proof is always on the respondents. This is true, regardless of a denial of fraud, of denial of a false consideration, and of a denial of the purpose to hinder or delay, as to all of which matters the law casts the burden on the respondents regardless of such denials.

"This rule also obtains, notwithstanding the respondents deny that the conveyance constitutes all or substantially all the property of the debtor. In Alabama it is not necessary that the conveyance constitute substantially all the debtor's property before it can be set aside as fraudulent.

"At the regular call of the docket in January, 1923, this cause was ordered submitted on original bill and answer, 30 days being allowed the parties in which to take testimony. Some time after the expiration of said 30 days, and on March 21 1923, the attorney for the complainant made out and signed his note of testimony, same being approved by the register and filed on the same day. At the same time the attorney for the complainant filed in the cause a certified copy of the judgment mentioned in the bill, together with a statement of the costs of suit incurred in obtaining same. It appears to the court that the filing of this judgment and this cost bill without first naming a day to take testimony and giving proper notice was improper. The respondents objected to same which objections are hereby sustained, and certified copy and said cost bill are not considered by the court in this decree.

"Shortly thereafter the register transmitted the file of papers in the case to the judge of the court for final decree. On March 22 1923, the attorney for the respondents filed in the cause a motion for additional time to take testimony. No evidence is offered in support of this motion, and no sufficient reason for such request is stated therein. It is ordered, adjudged and decreed that said motion be and hereby is overruled, and the relief asked for therein is hereby denied.

"On March 26, 1923, attorney for respondents filed in the cause an amended answer. And on March 28, 1923, he filed another amended answer. These amendments appear to be identical. Both these amendments the complainant has moved the court to strike from its files.

"It appears that the purpose and effect of said amendments is, by denying all substantial averments of the bill of complaint to shift the burden of proof from the respondents to the complainant after the cause had already been submitted, and after the file of papers...