Kling v. Tunstall

• Decision Date: 09 April 1896
• Citation: 19 So. 907,109 Ala. 608
• Parties: KLING v. TUNSTALL.
• Court: Alabama Supreme Court

19 So. 907

109 Ala. 608

KLING v. TUNSTALL.

Supreme Court of Alabama

April 9, 1896

Appeal from circuit court, Baldwin county; James T. Jones, Judge.

Action aided by attachment by Edmund S. Tunstall against D. M Paxson and John C. Williams, Sr., partners as D. M. Paxson &amp Co., in which August Kling was summoned as garnishee. From a judgment against him, the garnishee appeals. Reversed.

S. B Brown and J. N. Miller, for appellant.

Gregory L. & H. T. Smith, for appellee.

HEAD J.

The appellee, Tunstall, sold property to David M. Paxson and John C. Williams, Sr.; and, they being indebted to him on account thereof, he instituted suit against them by attachment, and caused appellant, Kling, to be summoned as garnishee. Complaint was regularly filed, and judgment obtained against the defendants. Judgment was rendered against the garnishee, upon contest of his answer of not indebted, etc., and from that judgment he prosecutes this appeal.

The garnishee, Kling, had loaned the defendants $3,500, the payment of which they had secured by mortgage on certain mill property. On the 24th day of August, 1893, he foreclosed the mortgage, and purchased, himself, at the price of $4,150. There was then due him on the mortgage debt $3,500, with interest from February 7, 1893, making $3,653.07. This left a balance of purchase money of $496.93, a part of which the garnishee testified he applied as follows: $56 for watchmen to take care of the mill property pending the sale; $6.50 for advertising the sale; and $100 for attorney's fees for advice and services in relation to the foreclosure of the mortgage,-aggregating $162.50; leaving a balance of $334.43. Prior and to the time of the execution of this mortgage there had been a partnership carrying on the milling business, composed of the defendant Paxson and John C. Williams, Jr., and Henry Hall, and the garnishee held claims, on open account, against that firm. At the time the mortgage was given, a new partnership was formed to carry on the same business, composed, according to some of the evidence, of the members of the old firm and the defendant John C. Williams, Sr., and, according to other evidence, of the defendants Paxson and John C. Williams, Sr., and John C. Williams, Jr. This new firm, it is also claimed, became indebted to the garnishee on open account. The testimony establishes, without conflict, that the two firms were so indebted to him, but questions are raised as to the amounts. The garnishee testified that, pending the foreclosure of the mortgage, both defendants (mortgagors) assumed these debts, and authorized him to bid, at the same, as sum sufficient to satisfy the mortgage and the debts so assumed. Paxson testified that he and John C. Williams, Sr. and Jr., who, he says, were the members of the new firm, all assumed to pay garnishee the indebtedness of the old firm, and that he (witness) authorized garnishee to apply any surplus over and above what was due on the mortgage, as far as necessary, to the payment of the amounts due him by both the old and the new firms. He testified that the amount due by the old firm was about $300. John C. Williams, Sr. and Jr., testified that they never assumed or agreed to pay said indebtedness of the old firm. These matters all occurred prior to the service of the garnishment. The bill of exceptions recites that the mortgage debt and the expenses of $162.50, above referred to, were not controverted by the plaintiff. John C. Williams, Sr., testified (and it was not disputed) that the new firm owed the debt which was secured by the mortgage, and owned the property conveyed by the mortgage. If this be true, the garnishee was entitled to...