Coleman v. Chambers

• Decision Date: 20 November 1900
• Citation: 127 Ala. 615,29 So. 58
• Parties: COLEMAN v. CHAMBERS.
• Court: Alabama Supreme Court

29 So. 58

127 Ala. 615

COLEMAN v. CHAMBERS.

Supreme Court of Alabama

November 20, 1900

Appeal from circuit court, St. Clair county; John Pelham, Judge.

Action by J. T. Chambers against the Lathrop-Hatton Lumber Company for which James R. Coleman was substituted as defendant. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The original action in this case was brought by the appellee, J T. Chambers, against the Lathrop-Hatton Lumber Company, and sought to recover an amount agreed to be paid by the defendant to the plaintiff for lumber furnished by the plaintiff to the defendant. The Lathrop-Hatton Lumber Company made an affidavit as required by section 2633 of the Code of 1896, in which it stated that the appellant, James R Coleman, was not a party to the suit, claimed to own the lands from which the timber sold by the plaintiff to the defendant was taken, and claimed the money in the hands of said company. The said Lathrop-Hatton Lumber Company, at the time of making said affidavit, paid the money sued for into court, and asked that said Coleman be substituted as party defendant. Proper notice was given to Coleman, and on a subsequent day Coleman appeared in court, and filed his claim in the circuit court, in which he alleged that the original suit was brought to recover the price of timber converted by the Lathrop-Hatton Lumber Company, which was delivered by plaintiff to said company; that the lands from which such timber was taken (specifically describing them) were the property of said James R. Coleman, the substituted defendant and had been, prior to the time such timber was cut therefrom, in his possession and under his control; and that said timber was the property of the substituted defendant, and that, therefore, the indebtedness from the Lathrop-Hatton Lumber Company to the defendant being under a contract for the payment of money for said timber, the substituted defendant claimed the money deposited in court. To this claim, so propounded by Coleman, the plaintiff demurred upon several grounds, stating, in various ways, that the facts set up in the claim of the substituted defendant were such as would not authorize him to be substituted as defendant for the original defendant, and that said claim as propounded fails to show any right to the particular money in controversy, but shows that, if the substituted defendant had any right or claim, it was a cause of action ex delicto, and not ex contractu. This demurrer was sustained, and thereupon, the substituted defendant declining to plead further, issue was joined. The plaintiff introduced evidence showing that the original defendant was indebted to him in the amount of money paid into court for timber sold by him to it. The defendant introduced no evidence. The court gave the general affirmative charge in favor of the plaintiff, and refused to give the general affirmative charge requested by the substituted defendant. To each of these rulings the substituted defendant duly excepted.

There were verdict and judgment for the plaintiff. The judgment entry, after reciting the rulings upon the demurrers to the portion of the verdict of the jury in favor of the plaintiff, then continued as follows: "It is therefore considered by the court that the plaintiff recover judgment against the substituted defendant for the said sum of forty-three and 92/100 dollars, so assessed, together with the costs of suit, and for which let execution issue. It is further ordered that the substituted defendant have 60 days in which to prepare and have signed a bill of exceptions to the supreme court." The substituted defendant appeals, and assigns as error the sustaining of the demurrers to his claim as propounded, and the rulings of the court in giving and refusing the respective charges asked by plaintiff and defendant, and the judgment as rendered.

Inzer & Greene, for appellant.

DOWDELL J.

Section 2144 of the Code of 1852, which is substantially the same as section 2633 of the present Code, at least in so far as the question here involved is concerned, received a construction by this court in the case of Nelson v. Goree's Adm'r, 34 Ala. 574. In Nelson's Case this court cites approvingly the case of Sherman v. Partridge, 11 How. Prac. 154, in which latter case the New York statute which is substantially the same as ours, was construed by the New York court. The claim of the party offered to be substituted as defendant to the debt or money in controversy in the case of Sherman v. Partridge was based upon a state of facts strikingly similar to the case at bar, and, indeed, in principle there is no distinction. In that case, as in the case before us, the plaintiff's suit was for the contract price of goods sold the defendant. There the logwood sold to the defendant was claimed by the claimant, the party offered to be substituted, as his property, and it was further claimed that Searle, who sold the same to the defendant, had no title or right to it, and no authority to sell; or, in other words, that Searle was a conversioner. Here the timber sold by plaintiff to the defendant is claimed by Coleman, the substituted defendant; and it is further claimed that it was converted by the plaintiff. In that case the plaintiff, it is true, was a transferee of the debt or demand sued upon, and an express promise was made to him by the defendant, at the time plaintiff purchased the debt from Searle, to pay plaintiff. But the court does not rest its decision alone upon this state of facts, and says: "Nor is it only upon the ground that...