Hughes v. Skidmore

• Decision Date: 01 March 1934
• Docket Number: 8 Div. 542.
• Citation: 153 So. 399,228 Ala. 348
• Parties: HUGHES et al. v. SKIDMORE.
• Court: Alabama Supreme Court

153 So. 399

228 Ala. 348

HUGHES et al. v. SKIDMORE.

8 Div. 542.

Supreme Court of Alabama

March 1, 1934

Rehearing Denied March 22, 1934.

Appeal from Law and Equity Court, Franklin County; B. H. Sargent Judge.

Creditor's bill by A. R. Skidmore against W. P. Hughes and another. From a decree for complainant, respondents appeal.

Reversed and remanded.

Travis Williams, of Russellville, for appellants.

J. Foy Guin, of Russellville, for appellee.

BROWN Justice.

This is a bill by appellee, a simple contract creditor, to set aside and annul certain conveyances made by the appellant, Dr. W P. Hughes, to his wife, Willie Mae Hughes, alleged to have been made to hinder, delay, and defraud the creditor of Dr Hughes.

The basis of the complainant's claim, asserted by the original bill, is an indebtedness evidenced by a note for $350, alleged to have been executed by one J. A. Taylor and Dr Hughes on January 24, 1929, due and payable twelve months after date, providing for reasonable attorney's fee for collection, and waiving exemptions as to personal property. A copy of the note was attached to and made an exhibit to the bill.

The respondents by their answer denied that Dr. Hughes was in any way indebted to the complainant, and alleged that the "note which purports to have been signed by J. A. Taylor and W. P. Hughes, reciting an indebtedness of $350.00 with interest from date, exhibit 'A' being a copy of said note, respondents aver that the said W. P. Hughes did not sign said note and did not authorize any other person to sign said note for him, and that he does not owe said note and does not owe complainant anything whatsoever. Respondents charge that the name 'W. P. Hughes' which appears on said note is a forgery, pure and simple, and respondents aver that complainant was advised before this bill was filed that the same was a forgery."

After the testimony was taken in the presence of the court, and the cause was submitted for final decree, the bill was amended by interlining therein, "The respondent W. P. Hughes is further indebted to this complainant in the sum of $150.00 and interest from, towit, January 24, 1929, by his promissory note executed jointly with J. A. Taylor on or about said date, same payable to complainant."

To the bill as amended the respondents refiled their answer, and thereafter the court entered a decree, ascertaining and adjudging that "respondent W. P. Hughes is indebted to the complainant in the sum of $150.00, together with interest thereon from January 24, 1929, aggregating $206.00, and is not further indebted to the complainant"; set aside the conveyances as fraudulent, and ordered the property described in the bill sold for the satisfaction of the indebtedness; hence this appeal.

It has been repeatedly ruled that the statute, now section 9471 of the Code of 1923, requiring "pleas which deny the execution by the defendant, his agent or attorney, or partner, of any instrument in writing, the foundation of the suit, or the assignment of the same, or which set forth any instrument in writing, whether under seal or not, which is alleged to be lost or destroyed * * * must be verified by affidavit," applies to suits in equity. Dreyspring, Adm'r v. Loeb, 119 Ala. 282, 24 So. 734; Sulzby v. Palmer, 196 Ala. 645, 70 So. 1; C. G. Kershaw Contracting Co. v. Cascade Corporation of Alabama, 224 Ala. 116, 138 So. 815.

The defendants' answer is not sworn to, and while complainant might well have rested his case, in so far as the existence of the alleged indebtedness evidenced by the note of $350 is concerned, on the evidence afforded by the note itself, yet the parties, without objection to the evidence, and the court proceeded on the assumption that the issue as to the nonexecution of the note by Dr. Hughes was presented, and the court seems to have determined this issue against the complainant. Therefore this question is not presented and will not be considered on this appeal. C. G. Kershaw Contracting Co. v. Cascade Corporation of Alabama, supra.

The question to be decided is: Can the decree be upheld on the alleged indebtedness of $150? The testimony offered by complainant goes to show that the only indebtedness contracted with him by Taylor and Hughes was for a loan of $350, made to Taylor as evidenced by the note for that amount of date of January 24, 1929; that...