Nelms v. Steiner Bros.

• Decision Date: 28 January 1897
• Citation: 22 So. 435,113 Ala. 562
• Parties: NELMS ET AL. v. STEINER ET AL. [1]
• Court: Alabama Supreme Court

22 So. 435

113 Ala. 562

NELMS ET AL. v. STEINER ET AL. ^[1]

Supreme Court of Alabama

January 28, 1897

Appeal from circuit court, Perry county; John Moore, Judge.

Action by Steiner Bros. against S. A. Nelms and others. From an order overruling their motion for a new trial, after a verdict for plaintiffs, defendants appeal. Reversed.

This action was brought to recover damages for taking and carrying away a stock of goods, wares, and merchandise and other property in and near the store house at Hamburg Station, in Perry county, then occupied by the plaintiffs, but shortly before that time by one I. L. Levy. The suit was commenced on the 5th day of July, 1892. The defendants, on the 29th day of August, 1892, jointly filed two pleas. The first was a general plea of not guilty. The second was a plea of justification under process. This plea, in substance, states that on the 23d day of March, 1892, two writs of attachment were issued by the Honorable John Moore, judge of the Fourth judicial circuit, one at the suit of Simon Maas, and the other at the suit of Maas & Schwarz, and both against Ignatz L. Levy, and both returnable to the next term of the circuit court of Perry county; that these attachments came to the hands of Samuel A. Nelms, one of the defendants, who was then sheriff of Perry county, to be executed and returned according to law, and that afterwards, on the 25th day of March, 1892, Samuel A. Nelms, sheriff as aforesaid, under and by virtue of said attachments, levied upon and took into his possession the stock of goods, wares, and merchandise and other property in the plaintiffs' complaint mentioned, as the property of said Ignatz L. Levy; that said sheriff duly returned said writs of attachment to the said circuit court and the plea avers that the said stock of goods, wares, and merchandise and other property mentioned in the plaintiffs' complaint was the property of said Ignatz L Levy, defendant in said attachments named, and were liable to said attachments. The plaintiffs took issue on each of said pleas, and the case was tried at the spring term of said circuit court in the year 1894, on said issues.

On the trial of the cause, the plaintiffs offered to read the writ of attachment issued at the suit of Maas & Schwarz against Ignatz L. Levy, with the indorsements and sheriff's return thereon. The defendants objected to the reading of said writ of attachment, with the indorsements and sheriff's return thereon, on the ground that said writ of attachment was only a part of the record in that cause; but the court overruled this objection, and the said attachment and the indorsements and sheriff's return thereon were read as evidence. The plaintiffs thereupon read as evidence against the defendants' objection, the writ of attachment, with the indorsement and sheriff's return thereon, which was issued at the suit of Simon Maas, against Ignatz L. Levy. The testimony for the plaintiffs was to the effect that on March 17, 1892, I. L. Levy, who was a merchant doing business at Hamburg Station, in Perry county, was indebted to the plaintiffs, Steiner Bros., in the sum of $2,673.03, and that on the aforementioned date the said Levy being in Birmingham, executed and delivered to Steiner Bros the following instrument: "Received of Burghard Steiner and Sigfried Steiner, as partners, under the firm name of Steiner Brothers, twenty-six hundred and seventy-three 03/100 dollars, in consideration of which I hereby grant, bargain sell, and deliver to them all of my certain stock of goods, wares, and general merchandise now in the store house occupied by me at Hamburg Station, in Perry county, Alabama; also one iron safe, all show cases, desks, stoves, and all other furniture and fixtures in said store, one pair of platform scales, 2 pair cotton-seed scales, one cart, one buggy, four hundred bushels of corn and cotton seed, house on right of way of the C. S. M. R. R. Co. Witness my hand and seal, this the 17th day of March, 1892. [Signed] I. L. Levy." This bill of sale was attested by two witnesses, and, its execution being proven by one of the attesting witnesses, it was introduced in evidence. The testimony for the plaintiffs further tended to show that the indebtedness of Levy to them was the result of business relations existing between them since 1888, and was evidenced by notes and accounts; that in the execution of the bill of sale there was no reservation of benefit to Levy, and that the property conveyed was reasonably worth the amount expressed in the bill of sale, but was worth no more; that from time to time, during the business transactions between Levy and the plaintiffs, the plaintiffs stated their accounts against Levy, and, at the time of the making of the bill of sale, the amount expressed was the amount shown to be due the plaintiffs by Levy's account with them. It was further shown that, upon the execution of this bill of sale, the plaintiffs sent their agent and representative, one Rudulph, to Hamburg Station, to take charge of the property; that Rudulph, with the assistance of two clerks, whom he employed from the plaintiffs, made an inventory of the stock of goods, and that this inventory was sent to the plaintiffs in Birmingham; that while Rudulph, as the agent of the plaintiffs, was in possession of the stock of goods, Maas & Schwarz and one Simon Maas each sued out a writ of attachment against I. L. Levy, on March 23, 1892, which writs of attachment were levied upon the property on March 25, 1892; that under these attachments the sheriff took possession of the property, which was then in the custody of Rudulph, as plaintiffs' agent, and sold the same. Upon the cross-examination of B. Steiner, one of the plaintiffs, he testified that on March 24, 1892, Steiner Bros. obtained a large number of chattel mortgages from I. L. Levy, to indemnify them against their liability as sureties on Levy's debt to Lehman, Durr & Co., of which debt Steiner Bros. had guarantied the payment. There was evidence in behalf of the defendants tending to show that there was collusion between Levy and the plaintiffs, by which their goods and other property were disposed of, to the hindrance and defrauding of their other creditors; and it was shown that the levy of the attachments which are complained of in this suit was under due process of law, the facts in this regard substantiating the averments of the defendants' pleas. After the testimony of B. Steiner as a witness, and the fact that the account of Steiner Bros. against Levy was stated at different times, the bill of exceptions then contains the following recital: "The said B. Steiner then produced and offered to read in evidence the statement of an account between I. L. Levy and Steiner Brothers, dated May 1, 1891, to which account the defendants objected, on the ground that it was a mere writing of the plaintiffs. The court overruled the objection, and defendants excepted, and said account was read in evidence. And the said B. Steiner produced another statement of an account of I. L. Levy with Steiner Bros., dated January 4, 1892, and offered to read said account in evidence. Defendants objected to said account being read in evidence. The court overruled the objection, and defendants excepted, and the said account was then read in evidence." Upon the cross-examination of B. Steiner, the defendants' counsel handed him the inventory which the witness Rudulph had testified he made, which had been produced and read in evidence, and said Steiner was then asked the following question: "Did you not hear Mr. Rudulph testify that he sent that book by express just as it is?" The plaintiffs objected to this question, which objection the court sustained, and the defendants duly excepted. It had been previously shown by the testimony of this witness that this inventory had been changed after it had been sent by Rudulph to Steiner Bros. The defendants introduced in evidence a deed from I. L. Levy to Steiner Bros., conveying three acres of land at Hamburg Station, with the store houses and dwelling thereon, and six acres of land in the village thereby, which deed expressed a consideration of $1,000, and was dated January 25, 1892, but was not filed for record until March 21, 1892. Samuel A. Nelms was then sworn and examined as a witness for the defendants. He testified about levying the attachments in favor of Maas & Schwarz and of Simon Maas on the stock of goods sued for, and he testified about the new goods. He also testified that, as sheriff, he sold the property levied on for $2,032.95, including the stock of goods, and that the stock of goods alone sold for $1,350, and it was worth about that sum. He also testified that I. L. Levy was present at the sale made by him as sheriff of said property levied on, at Hamburg Station; that at said sale I. L. Levy bid for some of the property sold, in the name of the plaintiffs; that he bought some of the property sold by the sheriff for and in the name of the plaintiffs; that said I. L. Levy, at said sale, bought a strawberry roan mare for and in the name of the plaintiffs; that said I. L. Levy, at said sale, bought an old desk, with a large number of papers in it, for and in the name of the plaintiffs; that said desk said Levy bought for the plaintiffs was worth $5 or $10, but said Levy bought said desk at the price of $40; that said I. L. Levy bought the articles enumerated above at said sale, and paid for them in the name of Steiner Bros. The plaintiffs then moved to exclude from the jury all that was testified to by said sheriff, Samuel A. Nelms, about or concerning I. L. Levy bidding for or buying or paying for property in the name of the plaintiffs, sold by the sheriff at said sale at Hamburg Station. The said motion was sustained by the court,...