Montgomery-Moore Mfg. Co. v. Leeth

• Decision Date: 30 November 1911
• Parties: MONTGOMERY-MOORE MFG. CO. v. LEETH.
• Court: Alabama Court of Appeals

56 So. 770

2 Ala.App. 324

MONTGOMERY-MOORE MFG. CO. v. LEETH.

Court of Appeals of Alabama

November 30, 1911

Rehearing Denied Dec. 14, 1911.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Attachment by the Montgomery-Moore Manufacturing Company against McCutchen & Son; G. Scott Leeth, claimant. Judgment for claimant, and plaintiff appeals. Affirmed.

The facts and exceptions to evidence are sufficiently set out in the opinion of the court. The following charges were refused to the appellant:

Assignment 34: "If the claimant, Leeth, had knowledge or notice before the sale that McCutchen was selling his property and converting it into money with the intent to place it beyond the reach of creditors, then the fact that Leeth paid for the goods is not material to the issues in this case. The sale would be void as against plaintiff because of the fraudulent intent, coupled with a notice to said Leeth."

Assignment 35: "The question of the adequacy of the consideration is not material in this case, if the jury are reasonably satisfied from all the evidence that McCutchen sold his property with the intent to convert it into money, so as to place it beyond the reach of his creditors, and before the sale Leeth had knowledge or notice of this fact, or was in possession of such facts and circumstances as should have elicited inquiries, which, if diligently pursued, would have brought knowledge to him, because, if the evidence reasonably satisfies you of these facts, the transaction between Leeth and McCutchen is condemned by the law as a fraud against the rights of creditors."

Assignment 36: "If the claimant, Leeth, before the sale had knowledge or notice that McCutchen was selling his property and converting it into money with the intent to place it beyond the reach of his creditors, then the fact that he paid for the goods is not material to the issues in this case. The sale would be void as against the plaintiff because of the fraudulent intent, coupled with the notice to said Leeth."

Assignment 37: "The court charges the jury that, if any member of the jury is reasonably satisfied from the evidence in this case that McCutchen sold his property with the purpose and intent to convert it into money, so as to place it beyond the reach of creditors, and before the sale Leeth had notice of this fact, or was in possession of such facts and circumstances as should have elicited inquiry which, if followed up, should have brought knowledge to him then you should find for the plaintiff."

The two charges referred to as given for the claimant are as follows: "The court charges the jury that fraud is never presumed, but must be proven by the party asserting it, and it will not be imputed when the facts and circumstances for which it is supposed to arise may reasonably consist with honest contentions." "The court charges the jury that an adequate consideration is a reasonable equivalent of the value of the property."

J. B. Brown, for appellant.

F. E. St. John, for appellee.

PELHAM, J.

The appellant and other creditors of P. S. McCutchen & Son had attachments issued out of the circuit court of Cullman county and levied on a stock of goods and other property while it was being moved by appellee from McCutchen's store in Baileyton, Ala., to the store of the appellee in Cullman Ala. The appellee, who had purchased the stock of goods and other property from McCutchen & Son, executed a claim bond and affidavit, and a trial of the right of property was had; the appellant being the plaintiff in the court below, McCutchen & Son, defendants, and appellee, G. S. Leeth, the claimant. The contention of the claimant is that he bought the property from McCutchen & Son, having paid an adequate consideration, and without knowledge or notice that McCutchen & Son sold the property for any fraudulent purpose or to hinder or delay their creditors; while the appellant, the plaintiff below, contends that the sale was with covinous intent and for the purpose of hindering, delaying or defrauding creditors, and that the claimant, Leeth, either participated in the fraud and had actual knowledge of a fraudulent intent on McCutchen's part or had knowledge or notice of such facts and circumstances as would put him on inquiry which, if pursued, would have brought knowledge of the fraudulent intent to him. This is the second appeal in the case. Montgomery-Moore Mfg. Co. v. Leith, 162 Ala. 246, 50 So. 210. The controverted propositions involved in the case on the trial related to the value of the property sold by McCutchen & Son to Leeth, and whether or not it was sold by McCutchen to Leeth with the fraudulent intent alleged, and, if so, whether or not Leeth had notice of such fraudulent intent on the part of the seller to hinder, delay, or defraud his creditors.

The appellant propounded interrogatories to the appellee under the statute (Code, § 4049), and, before entering on the trial, made a motion for a judgment against the appellee under section 4055 of the Code of 1907 for failing to answer the fifth, sixth, and tenth interrogatories, which the court ruled had not been sufficiently answered. The motion for judgment on the ground that there had been a failure to fully answer the interrogatories was overruled, and the court ordered full answers to be made, allowing the claimant and his attorney to withdraw to a jury room, against the objection of the appellant, where answers to the interrogatories were prepared.

There is a discretion conferred on the court by section 4055 of the Code of 1907 as to which mode it will adopt when full answers have not been filed (Culver v. Ala. Mid. Ry. Co., 108 Ala. 330, 18 So. 827), and the action of the court in taking a recess or waiting until full answers were prepared under the court's direction and filed, instead of continuing the case and delaying the trial to a subsequent day or term for full answers to be made to the interrogatories, as the court had the undoubted right and authority under the statute to do, constitutes no abuse of the discretion. In effect, the recess was a continuance for a sufficient time to allow full answers to be prepared and filed. This action of the court was entirely proper and worked no delay in the trial to another day or term, but expedited the trial of the case without injury or prejudice to any of appellant's rights. The purpose of the statute is to give parties in civil actions at law a remedy or right in the nature of a discovery as known to the courts of chancery (Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903); and, if the answers are not full or are evasive, the remedy is under section 4055 of the Code, which gives to the court a discretion to either attach the party in default and bring him into court and require full answers to be made in open court, or to continue the cause until full answers are made, or to direct a nonsuit or judgment by default as a penalty in consequence of the failure or default. In the case before us the party answering the interrogatories seems to have been personally present in the court, and there was no necessity for an attachment to cause him to come into court and answer fully. Moreover, the party was examined on the trial of the case as a witness, and the parties to the suit had full opportunity to avail themselves of the right to propound questions to him upon all matters within his knowledge touching the case, which, it would appear from the evidence set out in the bill of exceptions, was not scantily taken advantage of, and the rights of the parties could hardly be said to be prejudiced by some of the answers to the interrogatories not being based entirely upon the personal knowledge of the party and not responsive in all particulars to the interrogatories propounded, when it appears the party answering the interrogatories was examined fully and in detail orally on all these matters as a witness on the trial. The answers to the interrogatories appear to be a reasonably fair attempt to be responsive and to fully state the knowledge of the party in reference to the matters inquired about, and show no disposition to evade answering any question propounded, as we read them. It is plain that appellant suffered no detriment from the denial of his various motions relating to the answers to the interrogatories propounded under the statute to the appellee, and the court committed no error in overruling them.

In excluding, on the motion of the appellee, the statement made by the witness Williamson "that fellow asked if Mr. Leeth was coming," the trial court was but conforming to the ruling of the Supreme Court on the former trial. The statement was not shown by the evidence introduced on the trial up to the time of the court's ruling to be admissible as part of the res gestæ, nor do we think the evidence subsequently introduced, as pointed out by appellant and contended for in his brief, made the statement admissible or relieved it from being immaterial to the issues.

The trial court cannot be put in error for sustaining the objection to the question asked the witness Williamson as to the major part of the stock consisting of shoes, as the question was leading and suggestive. Allowing leading questions is a matter largely, if not entirely, within the discretion of the trial court. Barlow v. Hamilton, 151 Ala. 634, 44 So. 657.

Appellee's objection to the question asked the witness Griffin by appellant, "Did...