Elliott v. Kyle

• Decision Date: 08 February 1912
• Citation: 57 So. 752,176 Ala. 167
• Parties: ELLIOTT ET AL. v. KYLE.
• Court: Alabama Supreme Court

57 So. 752

176 Ala. 167

ELLIOTT ET AL. v. KYLE.

Supreme Court of Alabama

February 8, 1912

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by T. S. Kyle against J. M. Elliott, Jr., and others, for discovery. From a decree overruling demurrers to the bill defendants appeal. Affirmed.

The bill alleges that Kyle recovered a judgment against Elliott in Tennessee (naming the court and alleging its jurisdiction) in the sum of $72,075.72, which had been credited with the sum of $42,308, leaving a balance still due on said judgment of $32,000, with interest. It is then averred that Elliott had no visible property or means subject to legal process of value sufficient to pay complainant, and complainant is informed and believes, and on such information and belief states, that said Elliott has property, means, or assets not accessible under legal process, or interest in property, real or personal, or money, or effects, or choses in action which are not accessible under legal process, which are liable to the satisfaction of his debts to complainant, but the kind and description of said property, and how it is held, is kept concealed and hidden out, is unknown to complainant, and that the discovery of the same by the defendants herein named is necessary to enable complainant to reach and subject same to the satisfaction of said debt owing complainant by said defendant. Complainant then on information and belief states that the defendant has and owns certain valuable interests title, claim, or estate in the following corporations, to wit: Here follow a list of corporations. It is then alleged that the corporations have their principal place of business in Etowah county, Ala., and that said Elliott holds and owns or owns held by another or others, stock, bonds, notes, or other property interests, real or personal, liable to the satisfaction of plaintiff's debt, but not accessible under legal process; that the kind and description of the property, and how held, is kept concealed and hidden out, and is unknown to complainant, and the discovery of the same is necessary to reach and subject the same to the satisfaction of said debt. It is then alleged that, as trustee for his wife, he has from time to time conveyed to himself as such trustee, or has had others to convey to him as such trustee valuable property, and has conveyed valuable property to his wife, and that such conveyances by him to his wife were voluntary and without consideration, and the said property is liable to the debt above set out, but not accessible under legal process, etc. Then follow to each of the defendants named certain interrogatories; also certain interrogatories to James M. Elliott, Jr., and to his wife. A number of demurrers were filed, raising the point that there was no judgment in Alabama against J. M. Elliott, Jr., and no excuse given for not having obtained one; also raising the question that it does not appear that complainant has made any effort to ascertain what property Elliott owns subject to execution; and other grounds raising the sufficiency of the allegation as to the necessity for the discovery.

Hood & Murphree and Dortch, Martin & Allen, for appellants.

Goodhue & Blackwood and W. J. Boykin, for appellee.

MAYFIELD J.

Appellee filed this his bill, under section 3740 et seq., of the Code as a creditor of J. M. Elliott, Jr., one of the appellants, for a discovery. The debt alleged to be due and owing from appellant to appellee was evidenced by a judgment in the Supreme Court of Tennessee and was for more than $30,000. There is no allegation or insistence that any suit has been brought in this state upon that judgment; but complainant falls clearly...