Butler v. Feeder

• Decision Date: 14 June 1901
• Citation: 130 Ala. 604,31 So. 799
• Parties: BUTLER ET AL. v. FEEDER ET AL.
• Court: Alabama Supreme Court

31 So. 799

130 Ala. 604

BUTLER ET AL. v. FEEDER ET AL.

Supreme Court of Alabama

June 14, 1901

Appeal from circuit court, Henry county; John P. Hubbard, Judge.

Action by H. & G. Feeder against Butler & Stevens. Judgment for plaintiffs, and defendants appeal. Affirmed.

The parties to this suit were creditors of the firm of Nicholson Blount & Co., a mercantile house doing business in the town of Dothan, Ala., on the 1st day of February, 1897, on which date the appellants sued out a writ of attachment against the said Nicholson, Blount & Co., returnable to the next term of the circuit court of Henry county, Ala., which was executed by seizing the stock of goods of the said debtors, and recovered judgment in such suit at the next term of the said court. At the same term of the court the appellees recovered judgment against the said Nicholson, Blount & Co., and the goods seized by the sheriff under the writ in favor of the appellants having been sold by the sheriff, and the proceeds of such sale being in his hands, the appellees sued out a writ of garnishment and had the same served on the sheriff the answer of the sheriff admitted having funds in his hands the proceeds of the sale of the goods levied on as aforesaid and suggested the appellants as claimants, and they came in and propounded their claim to the money admitted to be in the garnishee's hands. On the trial of the case it was shown that the debt of appellees antedated the suing out of the attachment by the appellants, the suing out the writ of garnishment and the service of the same on the garnishee, and that the garnishee had in his possession the sum of $1,400 subject to the attachment of the appellants if entitled to it; that the debtors Nicholson, Blount & Co. were insolvent at the time of the suing out of the attachment of appellants. The tendency of the evidence for plaintiffs was that the suing out of the attachment by the claimants was the result of an agreement between the defendants in attachment and the appellants to enable them to secure a preference over other creditors of the said Nicholson, Blount & Co. There was evidence for claimants tending to show the debt of claimants was just and unpaid at the date of suing out their attachment. The other facts of the case necessary for an understanding of the decision on the present appeal are stated in the opinion.

The court at the request of the plaintiffs, gave to the jury the following written charge: "If the jury believe that the attachment of Butler & Stevens was sued out against the firm of Nicholson, Blount & Co. as the result of an agreement or understanding with W. T. Nicholson, by which Butler & Stevens was to sue out the same and have it levied upon the property of Nicholson, Blount & Co., and thereby acquire a prior lien upon the property of the latter over other creditors of said Nicholson, Blount & Co., then their verdict will be for the plaintiffs."

The claimants duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by them: (1) "If the jury believe the evidence, they will find for the claimants." (a) "The court charges the jury that although they may find from the evidence that claimants and Nicholson, Blount & Co. conspired and colluded with fraudulent purpose and intent to hinder, delay and defraud other creditors of Nicholson, Blount & Co., in the suing out of an attachment and levying the same upon the goods of Nicholson, Blount & Co., and prosecuting the same to judgment and condemnation of said property, still they must find for the claimants in this case if they shall believe from all the testimony in the case that the debt upon which said attachment suit was founded was bona fide, and that there was no reservation of interest or benefit in the attached property to Nicholson, Blount & Co., and that there was ground existing for the suing out of said attachment." (b) "The court charges the jury that the suing out of the attachment by claimants against Nicholson, Blount & Co. and the prosecution of the same to judgment and condemnation of the property levied upon, cannot be a fraud upon plaintiffs, entitling him to recover in this case, unless they shall believe from all the evidence that the debt upon which said attachment suit was founded was simulated and fictitious and that there was a reservation of interest, in the proceeds of said attachment suit to the benefit of Nicholson, Blount & Co., and that at the time of the suing out of said attachment suit said Nicholson, Blount & Co. were in failing circumstances or insolvent." (c) "The court charges the jury that the plaintiffs cannot recover at all in this case, unless they shall find from the evidence that Nicholson, Blount & Co. was insolvent or in failing circumstances at the time of the suing out of the attachment suit by claimants against said Nicholson, Blount & Co." (d) "The court charges the jury that the title to the $1,400 claimed by Butler & Stevens in this case is good, and that they must find the issue in favor of the claimants, if they shall find from the evidence that the debt due from Nicholson, Blount & Co. to claimants was bona fide, and that there was no agreement between claimants and them for a reservation of interest to Nicholson, Blount & Co. in the proceeds of the attachment suit by claimants against the said Nicholson, Blount & Co., and that grounds for suing out said attachment existed at the time of suing it out." (f) "The court charges the jury that they must find for the claimant if they believe from the evidence that the debt due from Nicholson, Blount & Co. to claimants was not simulated or fictitious, that one of the statutory grounds for suing out an attachment existed at the time claimants sued out their attachment against Nicholson, Blount & Co. and that there was no reservation of interest or benefit to the latter in the proceeds of the attached property, although they may further find from the testimony that Butler & Stevens, at the time of the suing out of said attachment suit, held mortgages and collateral notes to secure said debt." (g) "The court charges the jury that no evidence has been adduced in this case upon which they may infer that Nicholson, Blount &amp Co. was insolvent or in failing circumstances at the time of the suing out of the...