Inman v. Schloss

• Decision Date: 20 April 1899
• Citation: 25 So. 739,122 Ala. 461
• Parties: INMAN ET AL. v. SCHLOSS.
• Court: Alabama Supreme Court

25 So. 739

122 Ala. 461

INMAN ET AL. v. SCHLOSS.

Supreme Court of Alabama

April 20, 1899

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Attachment by Inman, Smith & Co. against J. Oppenheimer. There was a judgment for H. Schloss, claimant, and plaintiffs appeal. Reversed.

The writ was executed by levying upon certain merchandise in a storehouse in Eufaula occupied by the defendant. After the levy, the appellee, H. Schloss, interposed a claim to the property so levied upon, basing his right thereto upon a deed of assignment which had been executed to him by J Oppenheimer, the defendant in attachment, on December 28 1896, in which deed, Schloss, the claimant, was made the assignee. Upon the interposition of this claim, the statutory trial of the right of property was instituted. On this trial it was shown that the assignment was in the usual form except that it created a preference in favor of certain specified creditors of the assignor, and was only a partial and not a general assignment of his property. There was a conflict in the evidence as to the priority of the levy of the attachment and the execution and delivery of the assignment.

The plaintiffs' testimony tended to show that the attachment was levied on the goods as returned by the sheriff before the execution of the assignment. The officer making the levy testified that he was in the store with the paper when the assignment was spread out and about to be signed; that he stated that any paper then signed would be subject to his levy; that he then laid his hands on the counters and goods and said that he levied on all the goods; that the deed of assignment was executed and delivered to the assignee, together with the key to the store; and that the assignee agreed to hold the goods as agent for the sheriff. The goods were never moved out of their place, and the next day the assignee refused to give them to the sheriff, who attempted to move them when the claim bond was given.

The testimony on the part of the claimant was that, when the parties were preparing to execute the assignment, the officer said, "Whatever paper is signed is subject to a levy under" plaintiffs' attachment; that he then said he levied upon the entire stock of goods in the storehouse, but did not move them, and the assignment was immediately executed by the defendant and claimant, and delivered, along with the key to the store, where the assigned property was, to the assignee.

The testimony further showed that claimant's attorney denied that the officer had made a valid levy prior to the assignment, and the assignee said he would hold the goods for the sheriff provided the levy was valid, and the next day refused to give them up, holding the levy invalid, and did not give a claim bond until the officer insisted upon moving them out. The assignee remained in possession of the entire goods in the store until other attachments were levied upon the property and taken in possession by the sheriff, who, after making an inventory, turned them back to the assignee upon his giving claim bonds. The goods returned as levied on were in boxes and on the shelves, and what they were, was not ascertained, unless the inventory, afterwards taken by the sheriff of the stock, identified them.

Upon the introduction of all the evidence, the plaintiffs requested the court to give to the jury, among other charges, the general affirmative charge in their favor, and separately excepted to the court's refusal to give each of the charges as asked.

There were verdict and judgment for the claimant.

A. H. Merrill, G. L. Comer, and P. B. McKenzie, for appellants.

S. H. Dent, Jr., for appellee.

HARALSON J.

1. One of the questions in the case was, whether or not an alleged levy by the sheriff on the goods in question, under a writ of attachment sued out by appellants against the defendant in attachment, one J. Oppenheimer, was prior and superior to a deed of assignment executed by the defendant at or about the same time of the alleged levy, conveying to the claimant, H. Schloss, as trustee, the same goods for the benefit of specified creditors of said defendant. It is a question of competition for superiority between the attaching creditors, and the assignee in trust of said goods. The plaintiffs in attachment sought to show, from what occurred at the time, that the levy was complete, and that the goods were in the possession of the sheriff, before the said deed of assignment was executed; and the claimant, that said deed of assignment was executed and delivered by the defendant to said trustee, before the alleged levy was made. The two were so nearly coincident, that it became a question of proof as to which was prior in point of time. The plaintiffs introduced evidence tending to show that the goods, after the alleged levy, were left by the deputy,-who was then asserting his possession and right of possession, by virtue of his levy,-with the assignee, Schloss, until the next day, as the agent of the officer, a fact the claimant denied and introduced evidence tending to disprove. After the examination in chief by plaintiffs of their witness, C. E. Cory, touching what occurred at the time, the claimant, on cross-examination, asked him,-"Did we not deny, on or about the time the levy was made, that said levy was a valid one?" The court allowed this question, against the objection of plaintiffs, that it called for illegal and irrelevant evidence. The answer was, "You, S. H. Dent, Jr., did, but Schloss and Oppenheimer did not." Dent, as was shown, was then representing Schloss and Oppenheimer as their attorney. There was no error in allowing said question and its answer. It called for a part of the res gestæ of the transaction, competent to be shown for the proper determination of the question of fact at issue. It tended to show, that the trustee made no such agreement as that sought to be proved,-to hold the goods after an alleged levy as the bailee of the officer making it.

2. In the absence of statutory restrictions the right of a debtor to execute a conveyance or assignment for the benefit of creditors, giving preference to one or more of his creditors over others, and which amounts to an absolute exclusion even of the nonpreferred creditors, is universally recognized. This power, says Mr. Burrill, has always been recognized and approved in the fullest manner, both by the state and federal courts, as well as by most American jurists. And the right extended to general as well as to partial assignments to a trustee for the benefit of the debtor's creditors with preferences, and by insolvents as well as by those who were solvent. Burrill, Assignm. §§ 13, 128. It was said by this court in Trust Co. v. Foster, 58 Ala. 502,...