Cartwright v. West

• Decision Date: 16 May 1911
• Citation: 55 So. 917,173 Ala. 198
• Parties: CARTWRIGHT ET AL. v. WEST.
• Court: Alabama Supreme Court

55 So. 917

173 Ala. 198

CARTWRIGHT ET AL. v. WEST.

Supreme Court of Alabama

May 16, 1911

Rehearing Denied June 27, 1911.

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Bill by Marvin West, as trustee in bankruptcy of the estate of Herbert Cartwright, against Emma Doty Cartwright and others to annul certain conveyances of the bankrupt. From a decree holding certain pleas insufficient, respondents appeal. Reversed and rendered.

Kyle &amp Hutson, for appellants.

Callahan & Harris, for appellee.

DOWDELL C.J.

The appeal in this case is taken from the decree of the chancellor holding certain pleas filed to the bill insufficient; the cause having been set down for hearing on the sufficiency of said pleas.

Waiving the question as to the character of the pleas, whether or not pleas puis darein continuance and requiring verification they were not objected to for want of verification at the time of their filing, or at the time the cause was set down for hearing on their sufficiency. "The oath is not a part of the plea, but a preliminary to its reception, and when the plea is thus received it cannot be rejected by the court because it is insufficient." McCall v. McRae, 10 Ala. 313-316. In Wright v. Evans, 53 Ala. 103-107, it was ruled: "If verification is necessary, the want of it is not cause of demurrer, but ground of objection to the filing of the plea, or, if filed, on motion to strike it from the files." "The setting down of a plea to a bill for hearing on its sufficiency is an admission of the truth of all the facts alleged for the purpose of invoking judgment as to whether the facts constitute a defense." Town of New Decatur v. Scharfenberg, 147 Ala. 367, 41 So. 1025, 119 Am. St. Rep. 81; Tyson v. Land Co., 121 Ala. 414, 26 So. 507; Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514. The contention of appellee that a want of verification rendered the pleas insufficient, when set down for hearing on their sufficiency, as was done in the present case, is without merit.

In chancery practice and pleading, a plea may, the same as a demurrer, be filed to a part of the bill, as well as to the whole bill. Sims' Chan. Prac. & Plead. (Ala.) § 457; Story's Eq. Pl. (Redfield's Ed.) §§ 647, 659; Dan. Chan. Prac. (4th Am. Ed.) vol. 1, p. 685.

The record in the present instance fails to show with any degree of certainty that particular pleas numbered 1 and 2 were set down for hearing on their sufficiency. All that is shown in this respect is found in the decree of the chancellor, wherein it is stated that the cause "was submitted for decree upon the sufficiency of the pleas filed by Emma D. Cartwright and Anna Cartwright." Pleas numbered 1 and 2 were filed to the substituted bill as amended July 2, 1908, but were not refiled to the substituted bill as last amended on September 12, 1908. To the substituted bill as last amended, pleas 3 and 4 were filed, and then it was that the cause was set down for hearing on the sufficiency "of the pleas." From this it does not affirmatively appear that the cause was set down for hearing on pleas 1 and 2 to the bill as last amended, and on appeal error must be affirmatively shown. The court cannot be put in error for ruling on pleas, when the record does not clearly show that action was had by the court on them. A submission and hearing on pleas 3 and 4 filed to the bill as last amended fully respond to the above-quoted recital contained in the decree.

This brings us to a consideration of pleas 3 and 4, and the ruling had thereon. Plea 3 sets up as a defense that certain persons, alleged in the bill to be creditors of the bankrupt, and whose names are set forth in the plea, failed to file their said claims in the bankruptcy proceedings within 12 months from the adjudication in bankruptcy, and were therefore barred as creditors entitled to participate in any distribution of the bankrupt's estate, and hence there could be no recovery by the complainant in the present bill as trustee in bankruptcy for the benefit of such creditors. Collier on Bankruptcy (8th Ed.) pp. 612, 613. The defense set up in plea 4 is the same as that in plea 3, and is not restricted to any particular creditors or their claims named in the bill, but is directed against all of the creditors mentioned in the bill.

We digress here to state the purpose of the bill. The bill is exhibited by the appellee, Marvin West, as the trustee in bankruptcy of the estate of Herbert Cartwright, who had theretofore been adjudicated a bankrupt, and has for its object the annulment and setting aside of certain conveyances alleged to have been made by the said Herbert Cartwright to the appellants, respondents in the bill, with the intent to hinder, delay, or defraud his (the said Cartwright's) creditors. The complainant in his bill undertakes to set out the names of the various creditors of the bankrupt, and the amounts of their respective claims. The prayer of the bill in the alternative, among other things, is for personal decrees against the alleged fraudulent grantees for the value of...