Halsey v. Murray

• Decision Date: 16 June 1896
• Citation: 112 Ala. 185,20 So. 575
• Parties: HALSEY ET AL. v. MURRAY.
• Court: Alabama Supreme Court

20 So. 575

112 Ala. 185

HALSEY ET AL. v. MURRAY.

Supreme Court of Alabama

June 16, 1896

Appeal from chancery court, Madison county; Thomas Cobbs Chancellor.

Bill by Malcolm R. Murray against Charles H. Halsey and William L Halsey, individually, and C. H. & W. L. Halsey, a firm composed of Charles H. and William L. Halsey. From a decree for complainant, defendants appeal. Reversed.

The bill averred the following facts: At the August term, 1891 of the circuit court of Madison county, John Thomas Eason sued the firm of Baldridge, Murray & Halsey, a firm composed of William F. Baldridge, A. F. Murray, and Charles H. Halsey and on February 10, 1892, recovered a judgment against the said firm for $703.88 and costs of suit. On March 17, 1892 an execution was issued on this judgment commanding the sheriff that "of the goods and chattels, lands and tenements of Baldridge, Murray & Halsey, you cause to be made the sum of $703.88." On the day of the issuance of this execution it was placed in the hands of the sheriff, and on April 8, 1892, William F. Baldridge and Charles H. Halsey filed a bill in the chancery court of Madison county to enjoin the collection of said judgment, and, upon the bill being presented to the judge of the Eighth judicial circuit he entered on the bill an order that, upon the complainants therein executing a bond in the sum of $1,435, with security, to be approved by the register, payable and conditioned as required by law, the register should issue the injunction prayed for in the bill. The complainants executed the bond as required by the order of the circuit court, and as approved by the register on April 26, 1892. This bond was executed by William F. Baldridge and Charles H. Halsey as principals, and by the complainant, M. R. Murray, A. F. Murray, and C. H. & W. L. Halsey, as sureties. Upon the approval of the bond the writ of injunction was issued, and enjoined the collection of said judgment and levy of said execution, and this writ was duly served upon the sheriff of the county in whose hands the execution was, and against John Thomas Eason, the plaintiff in execution. This writ of injunction was made Exhibit D to the original bill, and recited that "the sheriff was commanded and enjoined from making any levy under the execution now in your hands in favor of the said John Thomas Eason vs. Baldridge, Murray & Halsey on the property of the complainants, until this honorable court can make such investigations and make such orders as justice and equity demand," etc. John Thomas Eason, the plaintiff in execution, answered said bill, and demurred thereto, and also filed a motion in writing to dissolve the injunction for the want of equity in the bill, and on the denials of the answer. On May 22, 1892, the chancellor granted the motion, and rendered a decree dissolving the injunction, and in this decree the chancellor required Eason to give a bond in the sum of double the amount enjoined. Eason executed the bond as required by the decree of the chancellor, and was proceeding to have the execution issued on the said judgment and on the execution bond, when the complainants in the bill obtained a decree from the chancellor restraining the execution pending an appeal taken to the supreme court; the decree at the same time requiring the complainants William F. Baldridge and Charles H. Halsey to give bond with sufficient security in the sum of $1,500. This bond was executed, with William F. Baldridge and Charles Halsey as principals, and the complainant, M. R. Murray, C. H. and William L. Halsey, as sureties. On April 27, 1893, the decree of the chancellor dissolving the injunction was affirmed by the supreme court (13 So. 74), and upon a certificate of affirmance to the register, the latter, on May 1, 1893, certified the injunction bond to the clerk of the circuit court under section 3529 of the Code, and thereupon the clerk of the supreme court issued an injunction with said certificate attached, and placed the same in the hands of the sheriff. This execution contained the following direction to the sheriff: "You are hereby commanded that of the goods and chattels, lands and tenements, of Baldridge, Murray & Halsey, a firm composed of W. F. Baldridge, C. H. Halsey, and A. F. Murray, William F. Baldridge, M. R. Murray, C. H. & W. L. Halsey, C. H. Halsey, and W. L. Halsey, defendants, you cause to be made the sum of seven hundred and three and 88/100 dollars, which John Thomas Eason, plaintiff, recovered of them, said firm, on the 10th day of February, 1892, by the judgment of the circuit court held for the county of Madison." Upon the issuance of this execution the sheriff demanded its payment by the complainant; and threatened, if he did not pay it, to levy upon complainant's property. Thereupon the complainant paid the amount of said judgment, and the judgment was transferred and assigned to the complainant. After said judgment was so assigned, the complainant filed in the office of the judge of probate the certificate of the clerk of the circuit court of the amount and date of said judgment, the court which rendered it, the names of the parties and of the plaintiff's attorneys, and to whom said judgment had been assigned, which certificate was duly registered and recorded in said office. After the assignment of said judgment, the clerk of the court, at the request of the complainant, issued an alias execution thereon against the defendants therein, and the obligors on said injunction bond, which execution was returned unsatisfied. Subsequent to the return of said execution, the register in chancery certified to the clerk of the circuit court a second injunction bond, upon which the complainant requested the clerk to issue an execution, with which request the clerk refused to comply. The bill alleges that W. F. Baldridge, one of the principals on the said injunction bond, is insolvent, and is absent from the state; and that A. F. Murray, one of the sureties on said bond, is also insolvent. The complainant then alleges "that he is subrogated to all the rights, remedies, and liens of John Thomas Eason against the defendant Charles H. Halsey, and that he is entitled to contribution as against his co-sureties, William L. Halsey and Charles H. & William L. Halsey; that as between the parties to this bill that the said debt and judgment is primarily the debt of Charles H. Halsey, who in equity should be required to pay the same; and that as between the sureties on said bonds who are solvent each should, in equity, be required to contribute equally to its payment and satisfaction." After describing in the bill the property owned by the firm of C. H. & W. L. Halsey, the bill then avers that: "'Complainant has a lien on the said property for the amount of the said judgment and costs, and is entitled to have the same condemned and sold to satisfy the same. After paying said judgment, as stated, and receiving a transfer of the same, your orator also paid the court costs, for which said execution had also been issued, amounting to $19. Complainant has requested the defendant Charles H. Halsey to reimburse him by paying to him the amount of said judgment and costs, and he has requested William L. Halsey to pay his equitable part of the said obligation as co-surety, and has made a like request of the said firm of C. H. & W. L. Halsey. They have refused to comply with such request, and announced that complainant shall be made to suffer the loss of the entire amount paid by him. They have threatened to sue the register for certifying the said injunction bonds, and to sue the clerk for issuing said executions, and they refuse to recognize any liability as principal or as surety or sureties on the said bonds." The prayer of the bill was: "That a decree may be rendered establishing and enforcing the lien of the said judgment on the property described in this bill, and that complainant may be subrogated to all the rights and liens of the said John Thomas Eason as against the said defendants; that the right, title, and interest of Charles H. Halsey in the said property herein described as his may be sold to pay the said judgment and costs, and that the right, title, and interest in the property described as the property of complainants' co-sureties may be sold to pay their equitable part of the said debt or judgment. And your orator prays for all other and further relief, either general or special, to which he is entitled on the facts as stated." The defendants demurred to the bill, and assigned, among others, the following grounds therefor: "(8) The said bill shows on its face that said M. R. Murray made voluntarily payment of money when there was no necessity in law or equity that he should pay it. (9) This bill shows upon its face that the execution issued in pursuance of the certificate of the register in chancery was void, and this complainant paid his money under a void execution." "(14) Said bill fails to show that said bond has ever been sued on or reduced to judgment, or to show, any legal liability or necessity why the said M. R. Murray should have paid anything thereon. (15) Because Exhibit D, made a part of the bill of complaint, shows that the collection of the judgment against Baldridge, Murray & Halsey was not enjoined or restrained, but that the levy of the execution on the individual property of Charles, H. Halsey and William F. Baldridge, or either of them, was alone enjoined and restrained." This demurrer was overruled. Upon the overruling of the demurrer the respondents filed their answer. There were no disputed questions of fact in the case, the averments of the bill being substantially proved by the exhibits and the two witnesses examined, and no witnesses being examined by the defendant. The other facts of the case...