Coffman v. Folds

Citation216 Ala. 133,112 So. 911
Decision Date21 April 1927
Docket Number6 Div. 882
PartiesCOFFMAN v. FOLDS.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Action by C.R. Folds against J.M. Coffman, in which there was verdict for the defendant. From a judgment granting plaintiff's motion for a new trial, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Brown &amp Bland, of Cullman, for appellant.

W Marvin Scott, of Cullman, for appellee.

THOMAS J.

The trial judge gave the general affirmative charge for the defendant and granted a motion for a new trial. There was for consideration General Acts of 1915, p. 916, amending Code of 1907, § 4237.

The established rule on appeal, challenging such action by the trial court hearing the witness on issues of fact, is as stated in Spivy-Johnson P. Co. v. B.A.I. Ass'n, 210 Ala. 681, 99 So. 80; Newman v. Morgan, 202 Ala. 606, 81 So. 548; Cobb v. Malone, 92 Ala. 630, 9 So. 738.

A primary inquiry is as to title and right of maintenance of the suit for damages for the "wrongful taking of a milk cow which was the only milk cow the plaintiff had," in the light of the fact that plaintiff had theretofore declared his bankruptcy by voluntary petition in the federal court, and the record fails to disclose that a trustee had been elected by creditors before the date of the trespass for which suit is brought. It is established by the supreme rule of law governing such property that after the election of a trustee, the original title, possession, or ownership is in effect transferred to the trustee. And of this we are subject to the federal rule, since Congress has elected to enter that field of activity touching property of the bankrupt as affecting the obligation of his contracts or legal obligations to certain creditors. The general subject of state law and the conflict with federal authority was considered by this court and is reported as L. & N.R. Co. v. State, 16 Ala.App. 199, 204, 209, 76 So. 505; Webb v. J.G. White Eng. Corp., 204 Ala. 429, 85 So. 729; Western Union Tel. Co. v. Beasley, 205 Ala. 115, 87 So. 858; State v. Goldstein, 207 Ala. 575, 93 So. 308, for authorities, Levy, Aronson & White v. Jones, 208 Ala. 104, 93 So. 733; Goolsby v. State, 213 Ala. 356, 104 So. 901.

In Johnson v. Collier, 222 U.S. 538, 539, 32 S.Ct. 104, 56 L.Ed. 306; Id., 161 Ala. 204, 49 So. 761, it is declared that while the filing of a petition in bankruptcy operates in the nature of attachment upon choses in action, etc., of the bankrupt, yet his title to property is not thereby divested ( Lockwood v. Exchange Bank, 190 U.S. 294, 23 S.Ct. 751, 47 L.Ed. 1061), and he still holds the same in trust as owner, until the appointment and qualification of his trustee in bankruptcy. When the creditors elect that representative by operation of law, he becomes vested with the title of the bankrupt and to all of his properties subject to liens and exemptions provided and protected by law. Until such election and qualification the bankrupt is recognized to have a superior yet defeasible title, which is "sufficient to authorize the institution and maintenance of a suit on any cause of action otherwise possessed by him"; and if the trustee is of the opinion that it is "to the benefit of the creditors," that official may intervene in any suit so commenced by the bankrupt, after his adjudication and before the election of the trustee, and avail himself of the rights and priorities if thereby acquired as to the trust property in question. Thatcher v. Rockwell, 105 U.S. 469, 26 L.Ed. 949.

The right adverted to of intervention by the trustee is no doubt limited to the trust properties that are subject to distribution to creditors and does not obtain to any personal right not cognizable by the bankrupt act or over which it has no control. Roy v. Abraham, 209 Ala. 691, 96 So. 883.

We then inquire of plaintiff's title and possession, or the immediate right of possession required by the law of this state for the maintenance of such action for trespass to such possession and property--an only milk cow. The statutes, sections 5667-5669, Code of 1923, defining possession and injury thereto, and actions for any unlawful deprivation thereof by third persons have been construed by this court in State v. Pensacola, etc., Co., 200 Ala. 144, 75 So. 892, intervention; B.S.R. Co. v. Goodwyn, 202 Ala. 599, 600, 81 So. 339, 340, where a bailment had intervened between the owner's immediate possession and the injury to the property for which damages were sought. This court said of the statute:

"Its manifest purpose was to settle the seeming conflict evidenced by the authority in this state as to the character of possession of a chattel essential to confer a right of action for its loss or injury at the hands of a wrongdoer, and under this statute, 'mere possession,' though 'wrongfully' and 'without title,' 'gives a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession.' To constitute this character of possession, however, the possession must have absolute dominion over and control of the property for the time being."

The evidence before the trial judge granting the motion for a new trial contained tendencies or reasonable inferences (precluding affirmative instruction, McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135) of such possession of the cow in Glasscock's pasture that made it a jury question of the collective fact of possession (Burkett v. Newell, 212 Ala. 183, 101 So. 836; W.B. Paterson Lumber Co. v. Patrick, 202 Ala. 363, 80 So. 445; Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Wright v. State, 136 Ala. 139, 34 So. 233).

The exemption statute presented for construction is an amendment to section 4237 of the Code of 1907 (Gen.Acts of 1915, p. 916). It is codified as section 7966, Code of 1923. It was of like words, save only the addition of the words, "and one cow and calf." The use of the words, "for any debt contracted after the adoption of this Code," as touching the exemption of cow and calf, can but be given the meaning of its legislative intent, after the approval of the amendatory act on September 28, 1915.

Another inquiry of fact pertinent to a right decision of this case is that of when the debt was contracted--whether before or after such amendment. If thereafter, a further inquiry of fact is was said cow the only cow of the plaintiff being, at the time of the levy, in the field of another some distance from plaintiff's home, with several other animals of like kind, and was she selected by the debtor, as required, when the officer took her into possession under the process waiving exemptions? This is to say, was the officer put upon notice and duly informed by the debtor of such exemption and selection? It should be observed that the selection prescribed by the statute that it is not required that the same be made in writing and filed as so required of other exemptions; it being only that an informal yet positive designation of the property be made of the class of exemptions covered by the statute--the purpose being to aid the poor and ignorant and guard such persons and their families from the oppression or inconvenience incident to the delay and uncertainty of making a formal claim of exemptions as is required of the other class of exemptions. Such is the manifest requirement evidenced by a consideration of the legislative...

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14 cases
  • In re Robinson, Bankruptcy No. 95-71118-TBB-7. Adversary No. 96-00525.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • 29 d3 Setembro d3 1999
    ...Alabama case law interpretation of § 6-10-7. See Ala.Code § 6-10-7 (1993); Ala.Code § 5-19-15 (1996); see, also. e.g., Coffman v. Folds, 216 Ala. 133, 112 So. 911 (1927); Smith v. Avco Fin. Serv. of Ala., Inc., 500 So.2d 1135 (Ala.Civ.App.1986). If one does not have to claim the protection ......
  • Bankers' Mortg. Bond Co. v. Rosenthal
    • United States
    • Alabama Supreme Court
    • 27 d4 Outubro d4 1932
    ... ... Scholes, 219 Ala. 571, 123 So. 61, Eggleston v ... Barnett, 220 Ala. 394, 125 So. 637, and Coffman v ... Folds, 216 Ala. 133, 112 So. 911, were to the effect ... that where no conflict of jurisdiction between state and ... federal courts is ... ...
  • Kibbe v. Scholes
    • United States
    • Alabama Supreme Court
    • 13 d4 Junho d4 1929
    ...suit is limited to trust properties, which are subject to distribution to creditors. Roy v. Abraham, 209 Ala. 691, 96 So. 883; Coffman v. Folds, supra. We indicated that complainant was not required to specifically claim his exemptions, select or itemize in his original schedules of assets ......
  • Casey v. Cooledge
    • United States
    • Alabama Supreme Court
    • 14 d1 Junho d1 1937
    ...161 U.S. 513, 16 S.Ct. 637, 40 L.Ed. 791. Such are the holdings by this court. Watson v. Motley, 201 Ala. 25, 75 So. 147; Coffman v. Folds, 216 Ala. 133, 112 So. 911; Kibbe v. Scholes et al., 219 Ala. 571, 123 So. Eggleston v. Barnett et al., 220 Ala. 394, 125 So. 637; Harper v. Dothan Nat.......
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