First Nat. Bank v. Hirschkowitz

• Decision Date: 23 June 1903
• Parties: FIRST NAT. BANK OF PENSACOLA et al. v. HIRSCHKOWITZ et al.
• Court: Florida Supreme Court

35 So. 22

46 Fla. 588

FIRST NAT. BANK OF PENSACOLA et al. v. HIRSCHKOWITZ et al.

Florida Supreme Court, Division A.

June 23, 1903

Appeal from Circuit Court, Escambia County; Evelyn C. Maxwell Judge.

Bill by the First National Bank of Pensacola and others against Dora Hirschkowitz and others. Decree for defendants, and plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. At common law the promissory note of a married woman is void. The Constitution and statutes of this state make no change in this respect, unless said married woman shall have been made a free dealer. Neither at law nor in equity can she bind herself so as to authorize a personal judgment against her.

2. Where a married woman carries on business in her own name having property employed in such business, and purchases goods upon her sole credit for the purpose of such business her separate property may be subjected in equity to the payment of claims for money due for such purposes.

3. Merchandise purchased by a married woman who is conducting a mercantile business in her own name is her separate statutory property.

4. A suit in equity brought by a creditor against a married woman for the purpose of subjecting her separate statutory property to payment of claims for money used by said married woman in purchasing goods for the conducting of a mercantile business in her own name is not an ordinary creditors' bill nor a bill analogous thereto. It is sui generis, being a suit in equity, on the same plane as a suit at law against a person sui juris. The bill in such case is the bringing of a suit and the appointment of a receiver, by which the property of said married woman is taken into the custody of the court, is an equitable attachment, and creates a lien upon the property so taken in charge in favor of the creditor procuring the receiver, just as a levy of an execution or attachment at law would do.

5. The filing of a bill by a creditor against a married woman for the purpose of subjecting her separate statutory property to the payment of her debts, and the appointment of a receiver by whom the possession of the property of said married woman is taken, gives such creditor a prior lien over other creditors who may have 'loitered by the way,' and entitles such creditor to a first lien upon the funds in the hands of the receiver, provided said suit is successfully prosecuted to final decree, the decree taking effect, by relation, from the appointment of such receiver.

COUNSEL

Blount & Blount, for appellants.

The First National Bank of Pensacola, a corporation, one of the appellants, filed its bill in equity in the circuit court of Escambia county on the 9th day of June, 1898, against Dora Hirschkowitz and Joseph Hirschkowitz, two of the appellees, alleging in substance therein as follows: That complainant was a corporation doing business in the city of Pensacola, Fla.; that the defendant Dora Hirschkowitz was the wife of the defendant Joseph Hirschkowitz, both of said defendants residing in the said city of Pensacola, where the said Dora Hirschkowitz had been conducting a merchandise business for a period of more than three years in the name of D. Hirschkowitz, in which she had bought and retailed clothing, dry goods, and other enumerated articles, and that said defendant was still engaged in said business at the date of the filing of said bill; that the said Dora Hirschkowitz had been the owner of all the merchandise bought and sold in carrying on said business, the same being her separate statutory estate, and purchased and held with her own separate statutory funds; that in conducting said business it became necessary from time to time for said defendant to incur indebtedness for the purpose of buying goods for maintaining, and at times increasing, the stock of merchandise, and that from time to time said defendant had borrowed from complainant various sums of money for said use; that for the purposes aforesaid, during the three or four months immediately preceding the filing of the bill, said defendant had borrowed from complainant various sums of money, and that of said sums the following amounts falling due at the following dates remained unpaid, to wit: $500 on June 1, 1898; $250 on June 1, 1898; $300 on June 3, 1898; $250 on June 1, 1898; $103.07 on June 4, 1898--all of which said sums of money had been actually used in the purchase of goods for said stock of merchandise and in the conduct of the said business; that the said debts were evidenced by the promissory notes of said defendant, payable at the times and in the sums above mentioned, said notes containing a stipulation that in the event the amounts mentioned therein should have to be collected by suit said defendant should pay an attorney's fee of 10 per cent.; that said defendant still continued to conduct said business, and was daily selling the goods accumulated therein, while the said stock had not been replenished by the acquisition of new goods for more than two months prior to the date of the filing of the bill, and, while the said stock of goods was then in excess of the amount necessary to satisfy said defendant's indebtedness to complainant, yet if said defendant continued to deplete the same by daily sales it would not suffice to pay said indebtedness, and complainant would have no recourse for the satisfaction of its debt; that said stock of merchandise consisted of goods which would rapidly deteriorate, and that the same must be sold at an early date if anything like the value thereof was to be realized at said sale; and that, if the said goods should remain unsold until a final decree could be obtained in this cause, the amount which would be realized from the sale thereof, after deducting the expenses of retention and sale of said goods, would not be sufficient to pay the indebtedness of complainant. Said bill contained a prayer that the court would ascertain the amount of money due from said defendant to complainant, together

with attorney's fees, and would decree that the amount so found to be due should constitute a first lien or charge upon the said property of said defendant, and that said property should be sold for the satisfaction of the said lien or charge, and the amount found to be due the complainant should be paid to it, and that for the preservation of said property, and realization therefrom of the largest amount possible, there should be appointed a receiver, to whom should be delivered the possession of the property, and who should be instructed to sell the same at public or private sale, as might be for the best interest of all concerned. Said bill also contained the general prayer and the usual prayer for process, and had an affidavit appended thereto from J. S. Leonard, the cashier of complainant.

On the same day the Carpeles Company, a corporation, the other appellant, filed its bill of complaint against said defendants, in substance the same as that filed by the First National Bank of Pensacola, save that it claimed a charge or lien upon the property of the said Dora Hirschkowitz for the sum of $80.

On the 9th day of June, 1898, subpoenas in chancery issued in said two suits, returnable on the 4th day of July, 1898, and each of said subpoenas was duly served upon said defendants on the said 9th day of June, 1898.

On the 8th day of June, 1898, the court below made an order appointing a receiver, directing him therein to take possession of said stock of merchandise and proceed to sell the same to the best advantage of all parties concerned. The receiver duly filed the bond required in said order, and on a subsequent day in July, 1898, filed a report showing therein the sale of all of stock of merchandise for the sum of $1,828.97, the expenses, exclusive of any compensation to the receiver for his services or fees for his attorney, being $280.48, leaving a balance in receiver's hands of $1,548.49.

On the 27th day of June, 1898, S.E. Worms & Co., who are appellees here, filed a petition of intervention, and on divers other days other interveners, all of whom are appellees here, filed their petitions of intervention, all of said petitions being the same in substance, differing only as to the respective amounts claimed. Said interveners expressed a willingness to contribute to the expenses of the suits already brought by appellants, upon their being made parties thereto, and claimed liens of equal dignity with those of appellants, and prayed that they might be 'entitled to the benefit of any decree which may be rendered in said suits equally and share alike with the complainants.'

On the 13th day of August, 1898, the court below made an order permitting the intervention of the said S.E. Worms & Co. to be filed and making said petitioner a party complainant, and on divers other days the court below made like orders permitting the interventions of the other petitioners to be filed and also making them parties complainant, the orders so made by said court reciting therein that appellants did not object to the said interveners being made parties, if the court should be of opinion and decide that petitioners were entitled to relief in any form in this case, but that appellants reserved to themselves all right of objection to such opinion and decision of the court, and of objecting to all other relief as prayed for in said petitions.

Subpoenas in chancery were issued at the instance of said interveners on the 8th day of August, 1898, and were duly served upon said defendants on the same day.

On the 1st day of August, 1898, decrees pro confesso were duly entered against said defendants in the suits of appellants.

On the 3d day of October, 1898, decrees pro confesso were duly entered against said defendants in favor of all the...