Killian v. Trigg, Dobbs & Co.

• Decision Date: 03 May 1923
• Docket Number: 7 Div. 347.
• Citation: 96 So. 409,209 Ala. 352
• Court: Alabama Supreme Court
• Parties: KILLIAN ET AL. v. TRIGG, DOBBS & CO. ET AL.

96 So. 409

209 Ala. 352

KILLIAN ET AL. v. TRIGG, DOBBS & CO. ET AL.

7 Div. 347.

Supreme Court of Alabama

May 3, 1923

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Bill of Trigg, Dobbs & Co. and others against M. H. Killian and others. From a decree for complainants, respondents appeal. Affirmed.

Isbell & Scott, of Ft. Payne, for appellants.

C. A Wolfes, of Ft. Payne, for appellees.

SAYRE J.

Appellants Killian and Jackson took over the entire stock of goods of R. H. Griggs, a merchant, in satisfaction of claims they had against him, after which creditors filed this bill on behalf of themselves and all others who might come in praying that the transaction be declared fraudulent and void as to them and, in a separate paragraph, that it be declared a general assignment. These prayers should have been in the alternative, but no objection was taken against the bill on account of this defect. The bill was not multifarious. Smith v. Young, 173 Ala. 190, 55 So. 425; Hard v. American Trust, 200 Ala. 264, 76 So. 30; Burnwell Coal Co. v. Setzer, 203 Ala. 395, 83 So. 139. In the trial court relief was decreed in accordance with that prayer of the bill noted in the second place, supra, and defendants were allowed "to have their own bona fide claims against Griggs treated and considered just as the claims of any creditors," thus reducing the quantum of relief that would have been available to the complaining creditors had relief been awarded under the first alternative prayer; but of this appellees have not complained.

Griggs was indebted to both Killian and Jackson for merchandise sold by them to him. Their scheme was for Killian to take over the major part of the stock of Griggs as stock consigned by him to Griggs for resale by the latter, the former having retained title until the goods might be resold. The remainder of the stock, thus reduced below the amount of the personal exemption allowed under the Constitution and laws of the state, was sold to Killian and Jackson, or to Killian for himself and Jackson, for $1,000 presently paid.

We are reasonably clear to the conclusion that the defense thus interposed cannot be maintained and that the chancellor was right in decreeing the transaction to be a transfer by the debtor Griggs of all or substantially all of his property for the security of defendants in preference to other creditors in short, a general assignment under section 4295 of the Code of 1907. True, across the face of the bills of goods shipped by Killian to Griggs from time to time were written-or perhaps partly written and partly printed-the legend, "Consigned to R. H. Griggs. ...