McDuffie v. Lynchburg Shoe Co.

• Decision Date: 29 June 1912
• Parties: MCDUFFIE ET AL. v. LYNCHBURG SHOE CO. ET AL.
• Court: Alabama Supreme Court

59 So. 567

178 Ala. 268

MCDUFFIE ET AL. v. LYNCHBURG SHOE CO. ET AL.

Supreme Court of Alabama

June 29, 1912

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Action by Lynchburg Shoe Company and others against B. P. McDuffie Sr., and others. Judgment for complainants, and defendants appeal. Affirmed.

W. L Parks, of Andalusia, for appellants.

Pace &amp Chapman, of Dothan, for appellees.

SAYRE J.

This bill was filed by several creditors of the appellants under section 3739 of Code, which authorizes creditors without a lien to file a bill in chancery to subject to the payment of their debts any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed by their debtor. The statute does not authorize a creditor to maintain a bill before the maturity of his debt. Jones v. Massey, 79 Ala. 370; Freider v. Leinkauff, 92 Ala. 469, 8 So. 758.

The averment of the amended bill is that prior to the date of the conveyances attacked, a date prior to the filing of the bill, defendants "became indebted to your orators," in amounts which are stated, and that on said date defendants "owed the debts above set forth and owed other debts to various creditors." The chancellor overruled a general demurrer, and the point urged on appeal is that there is a failure to aver that complainants' debts were due and unpaid at the time of the filing of the bill.

Since the Code of 1907, the general demurrer, previously prohibited by statute, performs the office of testing the equity of the bill. It goes to the substance of the bill, and defects of form will not be considered under it. Objections to form must be made specially, and must point out the defect with reasonable certainty and directness. The general demurrer accomplishes the purpose theretofore reached by the motion to dismiss for want of equity. Probably the only purpose of the change was to obviate the rule, which had been established in this court, that only when it appeared from the bill that amendment could be made which would entitle the complainant to relief, as where facts were illy pleaded, would such amendment be considered as made and the motion to dismiss for want of equity denied. However that may be, upon general demurrer, as formerly upon a motion to dismiss for want of equity, defects of form will be considered as amended. Singo v. Brainard, 55 So. 603.

Averment that a...