Rice v. Eiseman

• Decision Date: 08 February 1899
• Citation: 122 Ala. 343,25 So. 214
• Parties: RICE ET AL. v. EISEMAN ET AL.
• Court: Alabama Supreme Court

25 So. 214

122 Ala. 343

RICE ET AL. v. EISEMAN ET AL.

Supreme Court of Alabama

February 8, 1899

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

Bill by Eiseman Bros. & Co. and others against Sam Rice and Sam Trum. There was a judgment for complainants, and defendants appeal. Affirmed.

It was averred in the bill that the complainants Eiseman Bros. &amp Co., on June 6, 1895, obtained a judgment at law against the respondent Rice for an amount due on account for goods sold and delivered by them to said Rice; that on this judgment execution had been issued and returned "no property found." It was then averred that the respondent Rice was indebted to the complainant the Wertheimer-Swartz Shoe Company for goods sold and delivered by it to said respondent, which sum was due and unpaid. The fourth and fifth paragraphs of said bill were as follows: "(4) That said respondent Rice was engaged in a general mercantile business in the city of Montgomery, Alabama, up to about December 24, 1894; that while he was engaged in said business he became indebted to orators for goods sold and delivered him for the amounts and in the manner set forth in paragraphs 2 and 3 above; that on, to wit, December 24, 1894, said respondent Rice made a general assignment for the benefit of his creditors to one Nathan Gerson, as trustee; that said assigned business yielded, upon administration, 14 per cent net dividend, which was paid to creditors; that said Gerson as trustee disposed of the stock and other assets so assigned to him in bulk at auction to the highest cash bidder; that at said sale one Sam Trum became the ostensible purchaser thereof for an amount to your orators unknown.

"(5) That the said Trum was a clerk in the employ of said Rice before and up to the time of said assignment; that said Trum is a brother-in-law of said Rice; and orators are informed and believe, and upon such information and belief charge and aver that the said Sam Trum was without visible means and that he bought said stock at said assignment sale in his own name and ostensibly with his own money and for his own benefit, but that in fact said Rice was the real purchaser of said assigned stock and the sole beneficiary of said purchase operating in the name of said Sam Trum; that under the name of Sam Trum the said Rice has been and still is, in fact operating said purchased business for his own benefit; that said Rice is apparently and ostensibly a clerk or employé of said Trum but is in reality the true and bona fide owner of said business."

The bill then avers, "that in the manner and by the means above set forth and described, the said Sam Rice is withholding from the satisfaction of orators' claims assets that ought in good conscience be subjected to the payment of said debts, but that orators are unable to legally condemn said assets and property to their claims."

The prayer of the bill was as follows: "Orators further pray that your honor will decree that said stock and business operated and managed in the name of Sam Trum, as aforesaid be declared equitably liable to the satisfaction of orators' claims against said Sam Rice; orators further pray for such other and different relief as may to your honor seem just and equitable."

The respondents moved to dismiss the bill for the want of equity and also demurred to the bill upon the following grounds: (1) Said bill does not aver, or otherwise show, that said Sam Rice has no other property than that which, it avers, is in the name of said Sam Trum. (2) Said bill shows that the complainants have a complete and adequate remedy at law. (3) That the said bill is in the nature of a bill for discovery and is not sworn to. (4) Said bill fails to aver that said goods were bought with money belonging to said Rice. (5) That the prayer of said bill fails to ask for any definite or certain relief. (6) That the prayer of said bill fails to ask for any definite or certain relief against any specific property. (7) That the said prayer fails to ask for a receiver, or request the court to condemn said goods in any manner known to equity. ...