First Nat. Bank v. Lartigue

• Decision Date: 21 January 1937
• Docket Number: 1 Div. 933
• Citation: 173 So. 21,233 Ala. 670
• Parties: FIRST NAT. BANK OF MOBILE et al. v. LARTIGUE.
• Court: Alabama Supreme Court

173 So. 21

233 Ala. 670

FIRST NAT. BANK OF MOBILE et al. v. LARTIGUE.

1 Div. 933

Supreme Court of Alabama

January 21, 1937

Rehearing Denied March 18, 1937

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Claim suit between Rosa Lartigue, plaintiff in garnishment suit and the First National Bank of Mobile and Merchants National Bank of Mobile, as administrators of the estate of Margaret Cox, deceased, claimants. From a judgment for plaintiff claimants appeal.

Reversed and remanded.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellants.

B.F. McMillan, Jr., of Mobile, for appellee.

FOSTER Justice.

This is a claim suit growing out of a garnishment on judgment, by virtue of section 8079 et seq., Code. The judgment was rendered November 16, 1928. The garnishee was chief of police of the city of Mobile. The garnishment was issued October 23, 1935. The garnishee admitted the possession of $5,040 found in the house of defendant when it was searched under a search warrant issued by the city recorder, and stated that he had been notified that the administrators of the estate of Margaret Cox, deceased, claimed the money as belonging to said estate.

The administrators propounded their claim alleging that the money belonged to the estate. On a trial of the issue made up on that claim, there was a verdict and judgment for plaintiff, and claimants appeal. The errors assigned relate to rulings on the trial of the claim suit.

The first assignment of error is based on the refusal of the court to excuse from the rule certain persons alleged to be heirs of Margaret Cox, deceased, and as such are said to be the parties in real interest. The parties to a suit have the right to be present during the trial. Smith v. Collins, 94 Ala. 394, 10 So. 334; Ryan v. Couch, 66 Ala. 244. But because certain persons may or not have some uncertain, undefined, contingent interest does not, we think, give them the constitutional right to be present.

The administrators have title to the personalty, such as was here involved. They must pay the debts and expenses, and what is left, if anything, is distributed to the distributees. There is nothing here stated to show that there will be anything for distribution if that affects the question. No showing was made of any special need of such persons to assist in the trial. So that we think they showed no right to be present, or that the court abused its discretion in not excusing them. McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am.St.Rep. 25; Riley v. State, 88 Ala. 193, 7 So. 149.

The bill of exceptions recites that plaintiff introduced the original complaint in the suit against Clara Moskowitz. On objection, the court sustained it as to the complaint, but overruled it as to date of service. Thereupon plaintiff insisted that the complaint is relevant. Objection was again made to the complaint as being incompetent and immaterial and confusing the issues. The court overruled the objection and claimants excepted. The complaint was then set out in full. The objection, the bill of exception says, was made by plaintiff, and exception by claimants, but for present purposes, and for the sake of considering the question on its merits, we may assume without deciding that this is self-correcting. Unless there is in the trial some occasion to show when the debt accrued, the complaint and judgment are not necessary for plaintiff, and are sometimes held to be improper and reversible. Taliaferro v. Lane, 23 Ala. 369; Curtis v. Parker & Co., 136 Ala. 217(3), 33 So. 935; King v. Central Hardware Co., 204 Ala. 336, 85 So. 822; Dollins v. Pollock, 89 Ala. 351, 361, 7 So. 904. But these cases do not take into account rule 45, nor other questions of prejudice. Gayle v. Bancroft's Adm'r, 22 Ala. 316.

The evidence in one aspect showed that defendant had beat up plaintiff, and had been sued for $5,000, and she was hiding her money against that claim. Therefore the time when the cause of action arose as alleged in the complaint has some relevancy on the claim that since then she had a motive for hiding her money. This was material as to its ownership.

The third assignment of error relates to a ruling sustaining an objection to a question to plaintiff's witness Lynch, who served the search warrant, when the money was found, as to whether he ever found any other money tied up as that was. Counsel stated that they expected to show that Mrs. Cox always put up her money in that manner. The claim is that Mrs. Moskowitz, or her daughter, stole this money out of Mrs. Cox' house after she died. There was evidence as to how Mrs. Cox put up her money, but it does not appear that the witness had any knowledge of it. The contention as made in brief is that the witness would say that he had never before found any money so tied. This is irrelevant.

Other assignments relate to the refusal to allow claimants to show certain statements made by Mrs. Moskowitz when the search warrant was executed. Plaintiff had proven by Lynch that when he made the search he asked Mrs. Moskowitz: "Why do you keep all this money around your house?" To which she replied: "Well, I tell you, I had an argument with the Lartigues down the road and I gave one of those Lartigue women a whipping and I gave her a good whipping and she sued me for $5000.00, and got a judgment and I wasn't going to let her get any of my money if I could help it." He testified on cross-examination that the money was in a trunk in a little greasy bag. She was lying on a bed in the room. There were five small rolls like a cigar tied with a string. There were twenties, fifties, and one hundreds in bills, and four tens on a shelf, amounting to $5,040.

Claimant then introduced as a witness Bart Chamberlain, the solicitor. He said he had nothing to do with the execution of the search warrant, and was not at the house of Mrs. Moskowitz when the money was found, but was at the house of Mrs. Hurley, a daughter of Mrs. Moskowitz, across the street, which was also being searched. He went to her house, however, with some officers in a few minutes and found Mrs. Moskowitz there, and the search was still in progress. The money was then still in the house, but Mr. Lynch had taken it out of the trunk, and the statements by Mrs. Moskowitz, inquired about, were made to Mr. Chamberlain immediately following the finding of the money and following the statement to Mr. Lynch, though he was not present when she was talking to Mr. Chamberlain. Thereupon the claimants offered proof of contradictory statements made to Mr. Chamberlain as to the source whence she obtained the money.

Claimants offered to make such proof in great detail by other witnesses, extending into collateral matter embracing a written declaration by a brother of Mrs. Moskowitz. These statements were made before plaintiff acquired a lien by garnishment, but after judgment for the debt was rendered. Speaking generally, the following statement of an applicable principle has been often approved by this court, quoted in Craddock v. Walden, 184 Ala. 58, 63 So. 534, 535: " 'In trials of the right of property, declarations or admissions by the defendant in execution, made in the absence of claimant, are, as a rule, not admissible. *** But parties in possession of such property may make declarations explanatory of their possession, and either claim or disclaim ownership of the property, and such declarations may be given in evidence in an issue of disputed ownership, no matter who may be the parties to the suit. This because they are supposed to constitute a part of the res gestae. Such declarations, however, must not go beyond the time at which they are spoken. A declaration as to how title was acquired is not admissible.' Daffron v. Crump, 69 Ala. 77; Ray v. Jackson, 90 Ala. 513, 7 So. 747; Baker v. Drake, 148 Ala. 513, 41 So. 845." See, also, Larkin v. Baty, 111 Ala. 303, 18 So. 666; Cole v. Varner, 31 Ala. 244, 250; Barnes v. Mobley, 21 Ala. 232; Jones v. Chenault, 124 Ala. 610, 27 So. 515, 82 Am.St.Rep. 211.

There is another principle not dependent upon the doctrine of res gestae which sometimes has application in claim suits. The plaintiff, a creditor, stands in the right of the debtor as to ownership of the property. If the debtor...