Dollins v. Pollock

• Decision Date: 28 May 1890
• Citation: 7 So. 904,89 Ala. 351
• Parties: DOLLINS ET AL. v. POLLOCK ET AL.
• Court: Alabama Supreme Court

7 So. 904

89 Ala. 351

DOLLINS ET AL. v. POLLOCK ET AL.

Supreme Court of Alabama

May 28, 1890

Appeal from circuit court, Maveng county; W. E. CLARKE, Judge.

This was a statutory claim suit, in which the appellants interposed a claim to property levied on under an attachment issued ancillary to a suit brought by the appellees against Price Bros. Upon the evidence, the claimants requested the court to give the following written charges to the jury: (1) "The court charges the jury in this case that the inquiry should be directed to the bona fides of the debt, and the sufficiency of the consideration, and the reservation of a benefit to the debtor. If the transaction is not assailable on some one of these grounds, fraud otherwise has no room for operation." (2) "The court charges the jury in this case that whether there exists the ordinary badges of fraud, whether the debtor intended to hinder or defraud his other creditors, whether Adams and Dollins were swift in the race of dilligence for the purpose of defaulting other creditors who were pressing their demands, or whether such is the necessary consequence, are not material inquiries." (3) "The court charges the jury that the burden of proof that no benefit was reserved to Price Bros. is on the plaintiffs." (4) "The court charges the jury in this case that the intention of Price Bros. in making this sale to Adams and Dollins is not to be considered in determining the legality of this transaction." The court refused to give each of these charges, and the claimants reserved an exception to each such refusal. There was judgment for the plaintiffs in the claim suit, and the claimants bring this appeal, and assign the various rulings of the court below as error.

Geo. W. Taylor, for appellants.

Tayloe & Johnston and Geo. Lyon, for appellees.

STONE C.J.

Pollock & Co. sued out an attachment against Price Bros., which was levied on a stock of merchandise. Dollins and Mrs. Adams, as partners, claiming to be purchasers from Price Bros interposed a claim to the merchandise, executed a claim bond, and inaugurated what is known in our jurisprudence as a "trial of the right of property," a statutory proceeding which answers the purpose of an action of trespass against the sheriff, when it is complained that, under process against one, he has levied on the personal goods of another. The issue of merit in such trial is formed by an allegation on the part of the plaintiff in the process that the goods levied on are subject to it, and a denial by the claimant of the truth of that allegation. Such suit can be resorted to only when there is another suit, or final process in progress, and in the absence of such suit or process for the enforcement of a judgment recovered there can be no rightful resort to this statutory remedy. The statutes define its boundaries. 3 Brick. Dig. 776. In such trial the claimant is not concerned in the rightfulness of the levy. His right to litigate is confined to his right to the property, and to his legal right as contrasted with any equitable claim he may assert. Id. But if the process under which the condemnation is sought is void, he can take advantage of its invalidity. Of mere irregularities, or reversible errors, he cannot complain. Id. p. 777, § 25. At the threshold of the trial the claimants contended that the attachment was void, and should be dissolved. The first ground on which they rest this contention is that the suit, as they claim, is not against the partnership, but against the individuals composing it; and that consequently only the individual property of the defendants could be attached. This argument is presented in two aspects, the first of which is that the suit as originally framed was against O. R. Price and J. S. Price as individuals and not as a partnership. In suing out the process, alike in the affidavit and in the attachment, the defendants are described as "O. R. & J. S. Price, partners under the style of 'Price Bros."' A judgment and execution following this description of the defendants would be a judgment and execution against the partnership, and against each individual member named in the process. Under such process the sheriff would be authorized to seize both partnership effects, and the individual property of the several members composing the firm. Leinkauff v. Munter, 76 Ala. 194; Pearce v. Shorter, 50 Ala. 318. It is difficult to conceive how else process could be framed so as to authorize, in one suit and under one process, the seizure of the property of the partnership, and of the individual members composing it. In opposition to the principle stated above, the appellant relies on certain rulings of this court. Some of the expressions found in some of those cases may, as general propositions, be misleading; but, interpreted in the light of the facts in the particular cases, they are not opposed to what we have said. It should be promised that our statute makes the obligations of partners joint and several, and permits the creditor to sue them, jointly or severally, at his option. Code 1886, § 2605; Haralson v. Campbell, 63 Ala. 278; Hall v. Cook, 69 Ala. 87; Same v. Green, Id. 368; Alexander v. King, 87 Ala. 642, 6 South. Rep. 382; Alexander v. Jones, ante, 903. In the case of Haralson v. Campbell, 63 Ala. 278, although the suit was against two persons, describing them as partners, the execution was against the two describing them as individuals, and not stating they were partners. The form of the judgment is not shown in the report. There was a motion to quash the execution "because it directed the money to be made out of the individual effects of the defendants, and not out of the partnership property." The circuit court overruled the motion to quash, and this court affirmed the judgment, saying: "In this case the individuals are named and sued as such. The individual property of each partner is liable to seizure in satisfaction of this judgment." We did not decide that the partnership effects were not also liable, nor could we have so decided if the judgment and execution, like the complaint, had described the defendants as "partners under the name and style of W. J. Haralson & Co." That question was not before us. In the cases of Hall v. Cook, 69 Ala. 87, and Same v. Green, Id. 368, the defendants were sued as individuals, not describing them as partners.

Those cases shed not light on the present one. In Saw-Mill Co. v. Smith, 78 Ala. 108, three persons were named and sued as partners, and only two were served with process. The circuit court rendered judgment against the three. This court corrected the judgment, and affirmed it against the two who had been served. What effect that form of judgment would have in the matter of its collection was neither considered nor presented. None of the cases relied on support the view of appellant.

The second aspect of the question we are considering arises on the following state of facts: The attachment, as we have shown, was sued out against "O. R. & J. S. Price partners under the style of 'Price Bros."' The particular statutory ground of the attachment was that "the said Price Brothers have fraudulently disposed of their property." The attachment was sued out January 4, 1889. Our statute (Code 1886, § 2937) requires that when an attachment is levied, and defendant is a resident of the county, he must be notified of the levy by written notice either served on him or left at his residence. Written notice was served on J. S. Price. Other provisions are made for notice if the defendant resides out of the county, but in the state. The conveyance which the attachment in this case attacks as fraudulent was signed Saturday night, December 29, 1888, and was delivered to the purchasers Monday morning, December 31st. On Sunday morning, December 30th, O. R. Price left his place of residence, in Marengo county, with the avowed purpose of going to Florida, and he has never returned. This was before the attachment was sued out, and of course no actual notice of its levy was or could be served on him. As to him there was publication made under the section of the Code to be presently considered, before the return-term of the attachment. Section 2936 of the Code reads as follows: "When an attachment is sued out against a non-resident of the state, the writ shall be returned to the clerk of the court as soon as levied upon the property of the defendant, and thereupon the clerk shall cause a notice of the attachment and levy on the defendant's property to be advertised once a week for three successive weeks, in some newspaper, a copy of which must be sent by mail to the defendant, if his residence is known, or can be ascertained; and if such publication is perfected twenty days before the next term of the court, the case shall stand for trial at that term; otherwise at the succeeding term, or any term after the perfection of such publication, twenty days prior thereto." The appellant contends that this section of the Code refers, and only refers, to cases in which non-residence is made the ground for suing out the attachment, and that it is not applicable to attachments based on any of the other statutory grounds. Code 1886, § 2930. Reasoning from this postulate, he contends that O. R. Price is not made a party to the original suit against Price Bros.; that the suit is practically discontinued as to him, and remains only a suit against J. S. Price individually; that under an attachment against J. S. Price individually only his individual property can be levied on or held under such attachment; that the partnership property is released from the levy, and that the attachment has thereby become void as to the partnership property involved in this suit. We differ entirely with counsel, and hold...