R.A. Myles & Co. v. A.D. Davis Packing Co.
| Decision Date | 08 April 1919 |
| Docket Number | 1 Div. 252 |
| Citation | 81 So. 863,17 Ala.App. 85 |
| Parties | R.A. MYLES & CO. v. A.D. DAVIS PACKING CO. et al. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Action by R.A. Myles & Co. against the A.D. Davis Packing Company and another. Judgment of nonsuit, and plaintiffs appeal. Reversed and remanded.
Jesse F. Hogan, of Mobile, for appellants.
Inge & Kilborn and Herbert U. Feibelman, all of Mobile, for appellees.
The appellants, R.A. Myles, Mrs. R.A. Myles, and Erwin S. Myles, conducted a meat market under the style of "R.A. Myles & Co." A judgment was recovered in the law and equity court of Mobile county by the A.D. Davis Packing Company against R.A. Myles individually. An execution was issued upon this judgment and placed in the hands of the sheriff of Mobile county. The sheriff levied upon ten cows as the property of the defendant in execution, took possession of the same, and sold them in satisfaction of the execution. Prior to the sale of this property, the sheriff received an indemnifying bond, executed by the A.D. Davis Packing Company as principal and the Fidelity & Deposit Company of Maryland as surety.
The defendants in this suit were the principal and surety in the indemnifying bond. The complaint contained six counts. Each count is based upon the theory that the property levied upon was partnership property, and that the action of the sheriff in levying upon, taking possession of, and selling such property for the satisfaction of the individual debt of one of the partners was wrongful. Demurrers were interposed to the complaint, were sustained by the court, and appellants took a nonsuit.
The main and determining question raised by this record is whether the levy upon and sale of this property by the sheriff was wrongful. Each member of a copartnership is the owner of an undivided interest in the chattels and goods of such partnership. This interest under the decision in this state, is subject to seizure and sale under an execution in the hands of a sheriff upon a judgment rendered against one of the individual members of the partnership. Moore v. Semple, 3 Ala. 319; Andrews v. Keith, 34 Ala. 722; Daniel v. Owens, 70 Ala. 297.
The contention of appellants that this rule is to be applied only when all of the tangible property of a partnership has been levied upon to satisfy a judgment against one of the members of the firm is, in our opinion, without merit, and is opposed to the authorities above cited. Section 4106 of the Code of 1907 in no way changes this rule of law, and does nothing more than clothe the sheriff with the right of taking or not taking actual possession of the property levied upon, as he may see fit.
The extent of the interest acquired by a purchaser under a sheriff's sale under the circumstances and facts set out in this record is a matter with which we are not here concerned. Daniel v. Owens, supra; Tait v. Murphy, 80 Ala. 440, 2 So. 317.
The action of the court in sustaining appellee's demurrer was without error.
Affirmed.
On Rehearing.
The original opinion in this case expresses the view of BRICKEN, J., who still adheres to the principles there announced. The Presiding Judge and the writer, after a further consideration of the case, are of the opinion that the application for rehearing should be granted and the judgment reversed and the cause remanded for the following reasons:
It is undoubtedly the law of this state that under a fieri facias against the goods of one member of a partnership his interest in the tangible assets of the partnership may be levied on and sold, but only such interest as he has; the right acquired by such purchase is the right of the partner whose interest was sold and only his right, subject to all the liens, incumbrances, or infirmities affecting it as assets of the partnership. It is not a separate and exclusive right to any part or portion of it, or any right of any kind to any one part rather than to any other part, or any other right or interest than was held by the execution debtor as a member of the partnership. The ownership of each partner is subject to the ownership of all the other partners, and all the partners together hold the property subject to the right of the partnership to apply all of its funds to the payment of the partnership debts. The real ownership of all the chattels is vested in the firm, and the interest of each partner is merely a right to share in the profits of the business during its continuance, or in a division of the property upon dissolution...
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