Garrett v. Mayfield Woolen Mills

• Decision Date: 26 November 1907
• Citation: 153 Ala. 602,44 So. 1026
• Parties: GARRETT ET AL. v. MAYFIELD WOOLEN MILLS.
• Court: Alabama Supreme Court

44 So. 1026

153 Ala. 602

GARRETT ET AL. v. MAYFIELD WOOLEN MILLS.

Supreme Court of Alabama

November 26, 1907

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by the Mayfield Woolen Mills against the First Bank of Elba with J. M. Garrett and others as garnishees. From a judgment for plaintiff against the garnishees, they appeal. Affirmed.

The court found the facts to be as follows: "That at the spring term, 1901, of the circuit court of Coffee county, the Mayfield Woolen Mills recovered a judgment against L. H Morris for the sum of $1,114.88, besides cost of suit. That on October 27, 1902, plaintiff sued out a writ of garnishment on its judgment against Morris against the First Bank of Elba as garnishee. That at the April term, 1905, of said court the plaintiff recovered judgment against said bank as garnishee for the sum of $357.58 and costs of suit. That said bank appealed the case to the Supreme Court of the state of Alabama on September 29, 1905, giving a supersedeas bond on October 7, 1905, with Levi Powell and W. D. Hutchinson as securities. That said Supreme Court affirmed the judgment of the circuit court on April 28, 1906, and rendered judgment against the said bank and the sureties on its bond for the judgment of the lower court, $35.72 damages, and $45.05 costs of court, and that the said Powell and Hutchinson, as sureties on the bond, paid the said judgment and costs amounting to $471.48, on the 7th day of July, 1906, and thereupon had the judgment of the lower court in favor of the Mayfield Woolen Mills against the said bank transferred to them, which said transfer is in words and figures as follows: [Here follows proper written transfer of the judgment.] That, after the said Hutchinson and Powell paid the judgment, Malone paid them $200 on same, saying he did not want them to lose the entire sum. That there is now due by said bank on account of said judgment the sum of $471.48 and interest from the 7th day of July, 1906, to March 19, 1907, $20.09, making a total of $491.57. That in September, 1905, the plaintiff, Mayfield Woolen Mills, sued out a writ of garnishment, on its judgment against said bank, against J. M. Garrett, Fox Henderson, L. M. Bashinsky, J. B. Simmons, and A. B. Foster, which was executed prior to September 29, 1905. That on October 16, 1899, articles of incorporation of the First Bank of Elba were filed in the office of the judge of probate of Coffee county, with an authorized capital of $50,000, divided into 500 shares, of the par value of $100 each. That all of the shares of such corporation, 500 in number, were subscribed for at the time of the incorporation. That Garrett subscribed for 5 shares of said stock, Simmons for 10 shares of said stock, Henderson for 84 shares of said stock, Bashinsky for 84 shares, and Foster for 30 shares. That at the time of incorporation $25,000 of the capital stock was paid in by the subscribers; each of the garnishees above named paying in their pro rata share on the number of shares subscribed by each and receiving certificates of shares for the number paid for. Commission was issued, and said bank commenced business. That subsequently $10,000 was paid in; each of the subscribers paying an amount pro rata based on the number of shares each subscribed for. That after incorporation Levi Powell bought of Murphy 2 shares of his paid-up stock, paying therefor $200, the par value. That about July 1, 1903, James Murphy, acting for the shareholders of said bank, made a trade with G. H. Malone, by which he paid said Malone the interest of all the stockholders in said bank for $42,000, being $35,000 cash principal and $7,000 capital, with the understanding that, if any of the stockholders desire to retain their interest in the bank, Malone was to allow them to do so, paying to each of the shareholders ratifying the trade their pro rata of the total purchase price agreed upon, based upon the amount that each had paid in. That at the time of this agreement of sale and the subsequent sale the First Bank of Elba was solvent. That all of the stockholders, including the garnishees named, except Garrett and Simmons, ratified the agreement of Murphy with Malone, and each of those ratifying received the pro rata share of the amount paid by Malone; said Garrett and Simmons retaining their interest in the bank. That, at the time of the purchase by Malone, Hutchinson acquired a $6,000 interest in said bank. That Malone and his associates continued to operate said bank until September, 1902, when said bank ceased to do business and was merged into the First National Bank of Elba; Hutchinson receiving $6,000 of the stock of said national bank; that on this merger Malone and his associates received all the assets of the First Bank of Elba; neither the garnishees nor any of their associates, who had sold their stock in the First Bank of Elba, receiving any of said assets on the merger. That on the stock subscribed for by him Garrett has paid $350, Simmons $700, Fox Henderson $5,880, Bashinsky $5,880, and Foster $2,100. That, at the time of the sale of their interest to Malone, Henderson was owing said bank on stock subscribed for $2,520, Bashinsky $2,520, and Foster $900. At the same time Garrett was owing the said bank $150, and Simmons $300, on the stock subscribed, and that none of such money has ever been paid by them, but that the same is still due and owing." The court then proceeded to render judgment against Garrett for $150, against Simmons for $300, against Foster, Henderson, and Bashinsky, each, for the sum of $491.57, the amount due the plaintiff; and the costs were assessed against each, with the provision that the plaintiff may have but one satisfaction of his judgment, and that upon the payment of $491.57 and the costs of the proceedings the judgment should be marked satisfied in full.

Foster, Samford & Carroll, for appellants.

J. F. Sanders and Claude Riley, for appellee.

TYSON C.J.

This case was tried by the presiding judge without a jury, and upon request, the court made a special finding of the facts. Code 1896, § 3320. We are confined, of course, in our review of it, to the determination of the single question whether the facts as found will support the judgment rendered. Alabama & Georgia Lumber Co. v. Tisdale, 139 Ala. 250, 36 So. 618. It appears that the plaintiff, Mayfield Woolen Mills, in 1901, obtained a judgment against one Morris for the sum of $1,114.28, besides costs of suit. On this judgment the plaintiff sued out a writ of garnishment, on October 27, 1902, against the First Bank of Elba. In April, 1905, a judgment was obtained against the garnishee bank for $357.38. From this judgment the bank appealed to this court, superseding it by proper bond, upon which Levi Powell and W. D. Hutchinson were...