Kinney v. J.S. Reeves & Co.

• Citation: 142 Ala. 604,39 So. 29
• Parties: KINNEY ET AL. v. J. S. REEVES & CO. ET AL.
• Decision Date: 09 February 1905
• Court: Alabama Supreme Court

39 So. 29

142 Ala. 604

KINNEY ET AL. v. J. S. REEVES & CO. ET AL.

Supreme Court of Alabama

February 9, 1905

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

Suit by J. S. Reeves & Co. and others against P. H. Kinney and others. From a degree overruling a demurrer to the bill defendants appeal. Affirmed.

See 36 So. 22.

The bill in this case was filed by the appellees, who constituted three separate and distinct partnerships, all of whom were nonresidents of the state of Alabama, against the appellants. The purpose of the bill and the averments of facts are sufficiently set forth in the opinion. The bill was verified by the affidavit of Robert L. Hipp, who was one of the complainants' counsel, and this affidavit was as follows "Before me, A. E. Hewlett, register in chancery within and for the county and state aforesaid, personally appeared Robt. L. Hipp, who, being by me duly sworn on oath, says that he is one of the solicitors of the complainants in the above-entitled cause, and that all of the complainants are absent from the state of Alabama, and the statements contained in the bill of complaint as filed by the complainants in said cause are true. [ Signed] Robt. L Hipp." The defendants demurred to the bill upon the following grounds: "First. Because it is not alleged therein that the said defendants conceal or withhold any assets or property liable to the satisfaction of said alleged debts, and which can be legally subjected thereto. Second. Because, from all the allegations in said bill, said discovery would be useless and unavailing to the complainants, in this: that the property or assets, if any, discovered, would be exempt from said debts. Third. Because said bill is not verified as required by law, in this: that it is verified by attorney, and no sufficient excuse is shown therefor; the facts that complainants are absent from the state not being sufficient. Fourth. Because said bill is not properly verified, in this: it is verified by attorney alone, and it is not shown therein that he had any knowledge of any facts to which he was verifying."

Geo. H. Parker, for appellants.

Brown & Hipp, for appellees.

DENSON J.

The bill was filed by simple contract creditors for discovery of assets under section 819 of the Code of 1896, and to subject them to the payment of complainants' debts due them by the respondents. After averring that the respondents P. H Kinney and F. H. Kinney were engaged in a general merchandise business at Nauvoo, Ala., under the firm name and style of P. H. Kinney & Co., and that they became indebted to complainants in the various amounts set forth in the bill, which amounts are averred to be past due and unpaid, the bill avers that the said P. H. Kinney and F. H. Kinney, and said P. H. Kinney & Co., have no visible means subject to legal process of value sufficient to pay the claims of complainants; that the said P. H. Kinney and F. H. Kinney have no property standing in their own name, or held by them in their names, or in the name of the said partnership of which they are members, which can be reached or subjected to legal process for the satisfaction of the claims of the complainants, but that said P. H. Kinney and F. H. Kinney and P. H. Kinney & Co. have property, real or personal, or money, or effects, or choses in actions, or they have an interest in real or personal property, or money, or effects, or choses in action which are and should be subjected to the payment of complainants' claims, but the kind and description of the property and how the same is held, it is averred, is kept concealed...