Horton v. Spears

• Decision Date: 25 May 1939
• Docket Number: 6 Div. 488.
• Citation: 238 Ala. 464,191 So. 622
• Parties: HORTON ET AL. v. SPEARS ET AL.
• Court: Alabama Supreme Court

191 So. 622

238 Ala. 464

HORTON ET AL. v. SPEARS ET AL.

6 Div. 488.

Supreme Court of Alabama

May 25, 1939

Rehearing Denied June 8, 1939.

Rehearing Granted Oct. 12, 1939.

Further Rehearing Denied Nov. 2, 1939.

Appeal from Circuit Court, Blount County; W. M. Rayburn, Judge.

Bill by P. H. Horton and Virgil B. Fowler against C. L. Spears, B. S Byrum, L. F. Morton, and United Cotton Communities of America, a corporation, to enforce lien of recorded judgments. From a decree dismissing the bill, complainants appeal.

Reversed rendered, and remanded on rehearing.

Johnson & Busby, of Oneonta, and Griffith & Entrekin, of Cullman, for appellants.

R. G Kelton, of Oneonta, for appellees.

BROWN Justice.

This is a bill filed by the appellants as judgment creditors of the appellee, C. L. Spears, to enforce their judgment lien on cotton-seed and other property, alleged to be the property of the said judgment debtor. The appellee the United Cotton Communities of America, and others, were brought in as claimants of some interest in the property.

The cause went to final decree on pleading and proof, denying complainants relief and dismissing the bill. Upon the original consideration of the cause the decree was affirmed. Now upon further consideration of the cause on the application for rehearing we are persuaded that the bill was erroneously dismissed.

On first consideration much force was given to the alleged "membership agreement" made exhibit B to the defendants' answers to the discovery feature of the bill, which alleged agreement was not noted as evidence by the complainants and could not be offered by the defendants under well settled principles of equity law. Goodloe v. Dean, 81 Ala. 479, 8 So. 197; Reese v. Barker, 85 Ala. 474, 5 So. 305; Griffith et al. v. First Nat. Bank of Guntersville, 224 Ala. 296, 140 So. 359; The Branch Bank at Montgomery v. Parker, 5 Ala. 731; Saltmarsh v. Bower & Co.

22 Ala. 211; Southern Railway Co. v. Hayes et al., 183 Ala. 465, 62 So. 874; Daughdrill v. Lockhart, 181 Ala. 338, 61 So. 802.

The observation in Goodloe v. Dean, supra, 81 Ala. 480, 8 So. 197 speaking of the Rule of Chancery Practice 77 (now 75), is pertinent to the first phase of the stated question: "Under this rule not even the answer of a defendant can be regarded as legal testimony, or considered, unless it was offered in evidence before the court, and noted by the register. Mahone v. Williams, 39 Ala. 202."

On the second phase of the stated question the following observations taken from the opinion of the court in The Branch Bank at Montgomery v. Parker, 5 Ala. 731, pages 735, 736, are enlightening:

"The learned annotators upon Phillips on Evidence, consider that the answer to a bill of discovery, is not evidence, at the instance of the party making it, merely because it has been called for by his adversary, and assimilate it in this respect to a notice to produce papers. The complainant may use the defendant's answer or not, as he pleases; so the party who has given notice to produce, may, if he think proper, waive the production and make out his case independently. See Withers v. Gillespy, 7 Serg. & R. [Pa. 10] 14; Blight v. Ashley, 1 Pet.C.C. 15, 22 (Fed.Cas. [No.] 1,541); Willings v. Consequa, 1 Pet.C.C. [301], 302, 311 (Fed.Cas. [No.] 17,767); Hylton's lessee v. Brown, 1 Wash.C.C. 343 (Fed.Cas.No.6,982); 3 Phil. Ev. C. & H's notes 1206. An answer in chancery, it is said, is not evidence for the party making it, in any respect, unless his antagonist choose to use it, even though it was called out on a bill of discovery for the purpose of the very suit at law in which it was offered. It is therefore entirely in the election of the party calling for it, whether he will use it or not. 3 Phil. Ev. C. & H's notes 926.

"In Nourse v. Gregory, 3 Litt. [Ky.] 378, the question was, whether a party calling for a discovery to be used on a trial at law, was bound by the answer, or could he adduce other evidence contradictory of it. The court said, 'we are aware of no principle of law which either compels the plaintiff, after having obtained an answer to such a bill, to use it on the trial of the action at law, or if he should use it, that precludes him from controverting the correctness of its statements by other evidence. An answer to a bill of discovery is entitled to no higher consideration than an answer to any other description of bill, when given in evidence on the trial of an issue at law.' And in Kenny v. Clarkson, 1 Johns. [N.Y.] 385 (3 Am.Dec. [336]) where the question was, whether if the party giving notice to produce a paper, decline to read it as evidence, it may be used by his adversary. The court said the notice to produce, and calling for the inspection ought to be considered as analogous to a bill for discovery, 'where most certainly the answer is not evidence for the adverse party.' In Phillips v. Thompson, 1 Johns. Ch. [N.Y., 131] 141, a cross bill was filed by the defendant for a discovery by the complainant, to be used on the hearing. The chancellor held, that the complainant could not use his answer to the bill of discovery in the cross suit, unless the defendant choose first to produce it in evidence. That the complainant could not testify for himself, unless at the instance, and on the call of the defendants; and it was for the defendant to determine whether the answer should be evidence in the cause. The law on this point rests upon a principle so familiar, and so universally acknowledged that we deem it unnecessary to add any thing to the citations already made."

Another fatal infirmity inhering in said exhibit B, the alleged "membership agreement," which destroys its evidentiary force, is that it is a mere skeleton or blank, and there is no proof of its existence as a contract except the statement of the defendant in its answer. We quote from the answer to the discovery feature of the bill, "(h) We are attaching hereto a blank copy of 'Participating Membership Seed Certificate', marked Exhibit 'A', a blank copy of the 'Membership Agreement', and marked Exhibit 'B', and a blank copy of the 'First Year General Seed Contract,' marked Exhibit 'C', and a blank copy of 'Contract and Agreement', marked Exhibit 'D' to this answer." (Italics supplied.)

The court sustained a demurrer, incorporated in the answer, to the bill on the ground, among others, that the bill was not verified, and to meet that ruling the interrogatories calling for said answer were stricken from the bill by amendment.

For the reasons hereinabove stated the alleged "membership agreement" must be disregarded as evidence.

The bill avers:

"That the said C. L. Spears, at the time of the rendition of the said judgments and at the time of the filing of said certificates of judgment hereinabove set out, as shown by exhibits A and B [to the bill], the said C. L. Spears was the owner and in the possession of the following described property, personal property which is located in Blount County, Alabama, and is subject to the lien of the said P. H. Horton and the said Virgil B. Fowler, viz.:

"979 sacks of Cotton seed now located in the N. C. Prickett Store located on 1st Ave. in the Town of Oneonta, Alabama, each sack weighing 100 pounds; 564 sacks cotton seed each weighing 100 pounds located in Blount Warehouse Company's warehouse; 80 sacks of cull cotton seed weighing on an average of 75 pounds each located in Blount Warehouse Company's warehouse in Oneonta, Alabama; also one 1937 Chevrolet Delux Coupe automobile, Motor #946135, serial #8GA07-13310."

At the time the bill was filed the property so described was in the custody of the sheriff, the executions issued on said judgments in favor of complainants having been levied on the same as the property of said judgment defendant.

The defendant, "The United Cotton Communities of America, a Corporation," was made a party as claimant, and in its answer to the bill, asserts title thereto as follows, and not otherwise:

"Answering Paragraph 4th of said Bill of Complaint, this respondent saith that at no time has C. L. Spears been in the possession of and holding the title or the owner of said cotton seed described in said paragraph, but avers that this respondent has ever since the purchase of said seed from the growers, or the pooling of said seed by the growers with this respondent, been in the possession of and holding the title to and the owner of said cotton seed; this respondent saith that in so far as it is advised the said C. L. Spears may have owned or been in the possession of the described automobile coupe described in said paragraph, but avers that it is informed that said coupe belonged to Melvin Spears at the time alleged in said paragraph of the filing of said certificates.

"Answering Paragraph 5th of said Bill of Complaint this respondent admits and avers that this respondent claims to own the legal title to the said cotton-seed, and hereby propounds it's claim thereto, and shows in support thereof, 'Exhibits A, B, C and D, to the answers to the interrogatories propounded to it.' "

Under the issue thus formed the burden of proof was cast on complainants to reasonably sustain the averments of the bill as to Spears' ownership of the property, for "the burden of proving a disputed fact rests, in all cases, upon the party affirming its existence, and claiming to derive right and benefit from it." Lehman Brothers v. McQueen, 65 Ala. 570, 572.

As to the Chevrolet Coupe, the evidence is without dispute that it was in the possession and daily use of the judgment defendant at the time it was levied on by the sheriff, and while said judgment defendant in his answer to the bill, to quote from said answer, "denies that the 1937 Chevrolet Delux Coupe Automobile,...