Glaser v. Meyrovitz

• Decision Date: 05 November 1898
• Citation: 24 So. 514,119 Ala. 152
• Parties: GLASER ET AL. v. MEYROVITZ ET AL.
• Court: Alabama Supreme Court

24 So. 514

119 Ala. 152

GLASER ET AL. v. MEYROVITZ ET AL.

Supreme Court of Alabama

November 5, 1898

Appeal from chancery court, Barbour county; Jere N. Williams Chancellor.

Bill by Glaser, Kuder & Ottensosser against J. Meyrovitz and others. From decree sustaining pleas, complainants appeal. Reversed.

The bill in this case was filed by the appellants against the appellees. The averments of the bill and its purposes are sufficiently stated in the opinion. The two pleas of the defendants, to which demurrers were sustained and which are referred to in the opinion, are as follows: "(1) That on November 19, 1894, Glaser, Kuder & Ottensosser, Finger &amp Shelly Manufacturing Company, and Gans Bros., complainants in this bill, filed a bill of complaint against appellees in said chancery court, in which the same facts were set up as are now set up in this bill; they prayed for the appointment of a receiver, and the granting of an injunction; and also prayed 'that said acts of said Meyrovitz be declared to be a general assignment for the benefit of all the creditors of said Meyrovitz, and that said goods be sold, and the proceeds thereof be distributed equitably among all the creditors of said Meyrovitz,'BF and that upon the hearing of the said cause the said bill was dismissed by decree of said court, and that the same is unreversed. Hence they say said appellants [complainants] are now estopped from seeking the relief prayed for in this bill. [Here follows decree in said cause.] (2) That said attachments were issued and levied on the day stated in bill from said circuit court for debts owing by said Meyrovitz that were fair, just, and bona fide that the said attachment suits came on to be heard at the December term, 1894, of said circuit court, and judgments were rendered in favor of each of appellees in their several suits against said Meyrovitz, and that under the order of said court, and after the judgments were rendered, the sheriff of said county paid over to appellees the amount of the proceeds arising from the sale of goods levied on as aforesaid, and the sheriff of Dale county likewise paid over the amount of the proceeds of the sale of the goods levied on by him; that Glaser, Kuder & Ottensosser, Finger & Shelly Manufacturing Company, and Gans Bros. were informed about and knew of all said proceedings in said circuit court, and took no steps to prevent the same, but allowed said attachments to proceed to judgment in said court, and are now estopped from filing this bill and seeking the relief prayed for." The demurrers to these pleas were overruled, and it is from this decree that the present appeal is taken.

A. H Merrill and S. H. Dent, Jr., for appellants.

G. L. Comer, for appellees.

BRICKELL C.J.

The bill was filed on November 11, 1895, by appellants, creditors of J. Meyrovitz, and sought to compel an accounting by defendants, certain other creditors of said J. Meyrovitz, for the value of a stock of goods which had been levied on and sold as the property of Meyrovitz, under writs of attachment sued out by defendants with his consent and collusion, for the purpose of hindering, delaying, and defrauding complainants and other creditors. The defendants, as is permissible under the statute (Code 1896, § 699), incorporated in their answer two pleas; the first, intended as a plea of res adjudicata, alleging that on November 19, 1894, the complainants filed a bill against defendants, "in which the same facts were set up as are now set up in this bill," and in which they prayed for an injunction and the appointment of a receiver, and that the attachments procured with the consent of Meyrovitz be declared a general assignment, inuring to the equal benefit of all his creditors, and that upon the hearing of said cause a decree was rendered dismissing the bill, which is unreversed and of full force. The second plea asserts that complainants are estopped to maintain this suit by reason of the fact that, with knowledge that said attachment proceedings were pending in the circuit court, they permitted the same to be prosecuted to judgment, the property to be sold, and the proceeds distributed, without taking any steps to prevent it. To these pleas the complainants demurred, assigning causes all of which are directed to the sufficiency of the pleas. The demurrers were overruled, thereby adjudging the sufficiency of the pleas, and from the decree the appeal is taken.

The statute authorizes an appeal from an interlocutory decree sustaining or overruling a plea to a bill in equity, but not from the sustaining or overruling a demurrer to such plea. It is only from decrees sustaining or overruling a demurrer to a bill in equity, or a motion to dismiss a bill for want of equity, that an appeal is authorized. Code 1896, § 427. The statute is adapted to and meets the regular course of the practice in courts of chancery, in which demurrers to pleas are unknown. If the legal sufficiency of a plea is denied, it is set down for a hearing; the setting of it down operating as an admission of the truth of all facts contained in the...