Cook v. Schmidt
| Decision Date | 27 July 1893 |
| Citation | 13 So. 686,100 Ala. 582 |
| Parties | COOK v. SCHMIDT ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Montgomery county; Honorable John A Foster, Chancellor.
Bill by Schmidt & Ziegler against George W. Cook. From a decree for plaintiffs, defendant appeals. Affirmed.
A. A Wiley and W. S. Thorington, for appellant.
Richardson & Reese, for appellees.
The bill was filed under section 3545 of the Code, which authorizes a creditor without a lien or judgment to file a bill in a court of chancery for the discovery of the assets of the debtor, subject to the payment of debts. The constitutionality of the act, and the right of a creditor to relief under its provisions, have been thoroughly considered by this court, and should be regarded as settled law in this state. If we understand the argument of appellant's counsel, it concedes the constitutionality of the act which authorizes such a creditor to file a bill to reach assets which have been conveyed by his debtor to hinder, delay, and defraud his creditors. As was said in the case of Railroad Co. v. McKenzie, (Ala.) 5 South. Rep. 322 "We are not able to draw the distinction." The grantor, in the one case, as well as in the other, has the right to demand a jury to determine the question of indebtedness vel non. If there is no debt due complainant there is no fraud as against him in either case, and whatever may be the proof of fraud, he is not entitled to relief, until his debt has been established and determined by a decree of the court. The same argument, with as much propriety and force, could be made in every case where the controversy involves both legal and equitable questions, and both must be settled to administer complete justice between the parties; and yet it is not denied that, when a court of equity acquires jurisdiction for one purpose, it will retain the case "and administer complete justice, although in doing so it decides questions of purely legal cognizance." A vendor's lien is a claim of purely equitable cognizance, and it may exist and be enforced, although there is no written evidence of the indebtedness. Why is not the vendee entitled to a trial by jury to determine, first, whether he owes the debt? "Indebitatus vel non" is a question purely of law. Equity alone has jurisdiction of the lien, but, having jurisdiction for the purpose of the lien, it determines the law question of indebtedness, and...
To continue reading
Request your trial
-
Southern Steel Co. v. Hopkins
...purpose of administering justice. Boring v. Williams, 17 Ala. 510; Oelrich v. Spain, 15 Wall. (U. S.) 211-228, 21 L.Ed. 43; Cook v. Schmidt, 100 Ala. 582, 13 So. 686; Ency. Law (2d Ed.) 972-974. It is the duty of affording an efficient and speedy and economical administration of justice whi......
-
Pollak v. Billing
...a receiver; and for an injunction to prevent Pollak from disposing of the assets pending a determination of the cause. In Cook v. Schmidt, 100 Ala. 582, 13 So. 686, of the right of a simple contract creditor to maintain a bill under the statute, it was said: "The constitutionality of the ac......