Martin v. Carter

• Decision Date: 17 April 1890
• Citation: 7 So. 510,90 Ala. 96
• Parties: MARTIN ET AL. v. CARTER.
• Court: Alabama Supreme Court

7 So. 510

90 Ala. 96

MARTIN ET AL. v. CARTER.

Supreme Court of Alabama

April 17, 1890

Appeal from chancery court, Jackson county; THOMAS COBBS Chancellor.

Bill by W. A. B. Carter against John Martin and others to subject an undivided interest in notes and a mortgage to the payment of a judgment. From a decree overruling a demurrer to the bill on the grounds that it showed that complainant had a remedy at law, and that it was multifarious, respondents appeal.

Hunt & Clopton, for appellants.

W L. Martin, for appellee.

CLOPTON J.

Section 3540 of the Code declares: "When an execution for money from any court has been issued against a defendant, and is not satisfied, the plaintiff, or the person for whose benefit such execution is sued out, may file a bill in chancery against such defendant to compel the discovery of any property belonging to him, or held in trust for him, and to prevent the transfer, payment, or delivery thereof to such defendant, except when the trust has been created by, or proceeded from, some other person than the defendant himself; and the court may bring any other party before it, and decree such property, or the interest of the defendant therein, to the satisfaction of the sum due the plaintiff." It has been said that the statute is intended to declare and establish the principle that a creditor, after exhausting his legal remedies, might go into a court of equity for the purpose of subjecting the equitable estate of the debtor, or other interests which could not be made available at law, and to remedy defects in the course of procedure. Under the statute a bill may be filed to subject property which cannot be sold under execution or reached by legal process, or for discovery in aid of the execution at law. Before the statute the allegations of the bill were required to be specific and precise in respect to the estate or interest therein sought to be subjected, while under the statute the bill need only allege the supposed interests in the property of the defendant in the general terms of the act, either positively or in the alternative. Brown v. Bates, 10 Ala. 432.

The bill which is filed by appellee alleges that complainant is a judgment creditor of the defendant John Martin, upon which judgment execution has been issued, and returned: "No property found." It seeks to subject to the claim of complainant the interest of Martin in two notes executed by the defendants...