Pollak v. Billing

• Decision Date: 13 February 1902
• Citation: 32 So. 639,131 Ala. 519
• Parties: POLLAK ET AL. v. BILLING. [1]
• Court: Alabama Supreme Court

32 So. 639

131 Ala. 519

POLLAK ET AL. v. BILLING. ^[1]

Supreme Court of Alabama

February 13, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Suit by F. M. Billing against Ignatius Pollak and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

In addition to the averments of the bill as set forth in the opinion, it was further averred that Pollak had an interest in certain named corporations, and that certain named persons held in trust lands and property in which he had an equitable interest; that he had a vendor's lien for the purchase money of certain described real estate sold to certain persons or corporations; that Pollak was the equitable owner of a vast amount of property held by certain named persons or corporations, but that the same were not visible to complainant, and were not accessible to process; that the complainant did not know, and could not know, the particulars and extent of all the property owned by said Pollak, and the title thereto, without discovery of the same. There were also the following additional averments contained in said bill "Orator is informed and believes, and upon such information and belief avers and states, that if the said Ignatius Pollak should dispose of his property and assets which are equitable in nature, and not subject to legal process, orator would be wholly remediless in his effort to collect the debts of said Pollak justly due and owing to him and without an injunction against the said Ignatius Pollak restraining and enjoining him by himself or through his agents or attorneys, from selling, disposing of, or incumbering such assets and property, orator will be in great danger of losing the fruits of a decree in his favor in this cause, and of failing to subject such property and assets to the payment of the just debts of said Pollak to orator." Ignatius Pollak and the certain persons and corporations averred in the bill to be the holders in trust of the property alleged to belong to said Ignatius Pollak were made parties defendant. There were included, in the bill interrogatories addressed to Ignatius Pollak and other parties defendant. The purpose of these interrogatories was to disclose the character and location of the assets which it was averred Pollak had hidden out and concealed. The prayer of the bill was as follows: "And, upon the hearing, orator prays that your honor will refer it to the register to ascertain and report in what sum the said Ignatius Pollak is indebted to complainant, and that your honor will render a decree in favor of complainant, against the said Ignatius Pollak, therefor; and that your honor will, by proper orders and decrees, discover and ascertain what property real or personal, or interest in property real or personal, subject to the payment of the debts, the said Ignatius Pollak has, and what moneys, effects, and choses in action, and interest in moneys, effects, and choses in action, subject to the payment of debts, the said Ignatius Pollak has, and whether such money, property, effects, and choses in action are within or without the state of Alabama; and that your honor will make all such orders and decrees as may be necessary and proper to reach and subject such property, moneys, effects, and choses in action to the payment of the debts due and owing by said Ignatius Pollak to complainant; that, for the purpose, your honor will appoint a receiver, who shall be authorized under the orders and decrees of this court to demand, sue for, and recover, or otherwise to reduce to possession, all such property, moneys, effects, and choses in action; and that your honor will require the said Ignatius Pollak, and all other defendants to this cause, to make such receiver all conveyances, assignments, and transfers which may be necessary and proper to enable such receiver to receive or to sue for and recover such property. That your honor will grant unto complainant a writ of injunction restraining the said Ignatius Pollak, by himself or through his agents or attorneys, or otherwise, from selling, disposing of, or incumbering his property or assets or any of them, whether legal or equitable in their nature, pending the determination of this cause. That your honor will adjudge and decree that neither the said Helene nor Robert Pollak has any interest or claim in and to any of the obligations of The Fair, purporting to be payable to S. Roman individually or as trustee for them, or, if the said Helene or Robert Pollak has any interest in the same, that such interest is subject to the claim of complainant thereto, for the satisfaction of the debts of said Pollak." The bill was amended by adding thereto the agreement entered into by Ignatius Pollak as to his obligations to Josiah Morris & Co., which was the style of the firm under which F. M. Billing did business. This agreement is copied in the opinion.

The defendant Pollak made a motion to dismiss the bill for the want of equity, and also demurred to the bill upon the following grounds: "(1) That it appears in and by said bill that the cause of action of the plaintiff accrued more than six years prior to the commencement of this suit, and that it is barred by the statute of limitations of six years. (2) That the said bill is not a bill of discovery, the oath thereto being waived, and the plaintiff does not show that his remedy at law has been exhausted by return of no property on an execution on a judgment against this respondent, and the bill is not filed to subject any specified property, and is a fishing bill, by a simple contract creditor, for the collection of a legal demand, whereby it appears that this court is without jurisdiction of said cause. (3) That said bill is not for discovery, nor for the condemnation of specified property, and it does not allege sufficiently the fraudulent conveyance or transfer, or attempted fraudulent conveyance or transfer, of any specific property." The defendant Pollak also filed several pleas; the first of these pleas set up that the cause of action set forth in the bill accrued more than six years prior to the institution of the suit, to wit, in the year 1893, and that the same was barred by the statute of limitations of six years. The substance of the other pleas is sufficiently stated in the opinion.

Upon the submission of the cause upon the motion to dismiss, upon the demurrer to the bill, and the exceptions to the sufficiency of the pleas, the court rendered a decree overruling the motion and the demurrer, and sustaining the exceptions to the pleas. From this decree the...