Herzberg v. Riddle

• Decision Date: 02 February 1911
• Citation: 54 So. 635,171 Ala. 368
• Parties: HERZBERG v. RIDDLE ET AL.
• Court: Alabama Supreme Court

54 So. 635

171 Ala. 368

HERZBERG v. RIDDLE ET AL.

Supreme Court of Alabama

February 2, 1911

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by L. L. Herzberg, as trustee of S. J. Riddle & Co., against R. J. Riddle and the Tennessee Milling Company, to recover money alleged to have been paid by the bankrupt in violation of the bankrupt law. Judgment for defendants, and plaintiff appeals. Affirmed.

The plaintiff requested the following charges, which were refused: (I) "The court charges the jury that the District Court of the United States for the Eastern Division of the Northern District of Alabama, sitting as a court of bankruptcy, is a court of competent jurisdiction, with the power and authority to adjudge persons bankrupt, and to administer bankrupt estates, and no unfavorable inferences to the plaintiff can be indulged in by the jury from the comments of counsel that the estate of S.W. Riddle & Co. bankrupts, was adjudicated and administered in that court." (J) "The court charges the jury that actual sale of property by a trustee in bankruptcy is evidence of the market value of the property."

The following charges were given for the defendant: (8) "The court charges the jury that before plaintiff can recover in this case he must reasonably satisfy the jury by the evidence that defendant has reasonable cause to believe S.W. Riddle &amp Co. were insolvent when he received the money, and that the payment of it was made with the intent to defeat the bankrupt law."

Boykin & Brindley, for appellant.

Dortch Martin & Allen, for appellees.

MAYFIELD J.

The bill of exceptions in the main case must be stricken on appellees' motion. The record shows that the trial was had on November 6, 1907, and that the bill of exceptions was signed January 1, 1908. It thus affirmatively appears that the bill was signed more than 30 days after the trial without any extension of time as required by the local statute. Acts 1900-01, p. 1299; Cobb v. Owen, 150 Ala. 410, 43 So 826.

It does appear that on December 20th, when the motion for a new trial was overruled, the appellant was granted 20 days in which to prepare and have signed a bill of exceptions; but this was after the time had expired in which a bill as to the main trial could be signed, and was consequently without efficacy to restore the lost right, and could only authorize the signing of the bill of exceptions as to the proceedings on the motion for a new trial, and not as to the main trial. For this reason, the bill of exceptions could only be considered as a part of the record for the purpose of reviewing the action of the court in overruling the motion for a new trial. Southern Railway Co. v. Kirsch, 150 Ala. 659, 43 So. 796; Keith's Case, 136 Ala. 469, 34 So. 925; Brown's Case, 129 Ala. 282, 29 So. 548. The complaint, as originally filed, did not sufficiently point out whether the action was for money paid by the bankrupt to his creditor or for specific property purchased by the creditor from the bankrupt in payment of a pre-existing debt. It was indefinite and uncertain in this respect. The trustee could sue for either, and the complaint should have informed the defendants which was claimed. The demurrer took this point, and was properly sustained.

But, even if these rulings on the pleadings could be said to be error, they were clearly without injury, for the reason that like pleadings--almost identical--in each case, were thereafter filed, and demurrers thereto overruled. The same or like evidence, in either case, would have supported a like verdict. This case being originally one to recover money paid by a bankrupt in violation of the bankrupt law, and for the goods received of the bankrupt in violation of such law as to preferences, and the counts as to the goods being withdrawn, there are left only the counts as to the payments of money.

There were two claims as for money payments--one for $303.81 and the other for $1,017. The latter claim is eliminated because the undisputed evidence shows that the defendant R. J. Riddle never received it. So the real contest was and is as to the payment of this $303.81. The disputed questions were (1)) the insolvency vel non of the alleged bankrupt at the time of the payments of the amounts alleged to constitute preferences; (2) knowledge or notice, on the part of the defendant, of facts such as would charge him with knowledge of the insolvency; (3) whether the defendant received a larger per cent. of his claim than that to which he was entitled. The plaintiff contended that the payments of money and the delivery of the goods constituted one and the same transaction, and that both should be considered in determining whether or not defendants had received a preference over the other creditors; while the defendants claimed that the payment of the money--the $303.81--was a separate and distinct transaction from that of the delivery of the goods. This question was by the trial court properly submitted to the jury. The jury found against the plaintiff (appellant here), and we find no error in the rulings of the court as to this matter.

It was likewise open for the jury to find that the alleged bankrupt was not insolvent at the time of the payment of the $300, and that the defendants were not chargeable with notice thereof; and it was likewise a jury question whether there was in fact a preference as to this payment if insolvency was found. Hence it cannot be said as matter of law that the verdict of the jury was wrong, or that the trial court erred in setting it aside because contrary to the law or the evidence.

The ground of the motion for a new trial that "the court erred in its oral charge to the jury" is too general to be reviewed on this appeal--certainly so, when the oral charge is not set out.

The court properly refused charge "I." It was a mere argument, intended to answer argument of opposing counsel.

Charge "J" could have been given or...