Scholze v. Steiner

• Decision Date: 14 November 1893
• Parties: SCHOLZE ET AL. v. STEINER ET AL. [1]
• Court: Alabama Supreme Court

14 So. 552

100 Ala. 148

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

Supreme Court of Alabama

November 14, 1893

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Bill by B. Steiner and Sol. Levi against Robert Scholze and others. From a decree overruling motions to dismiss the bill for want of equity, and to dissolve an injunction, defendant Scholze appeals. Affirmed.

Complainants were sureties on an appeal bond given by Emil Lesser for an appeal to the supreme court in the case of H. Scholze and E. Lesser against Robert Scholze and the Francis-Chenoweth Hardware Company, and the bill prayed for an injunction restraining the said Robert Scholze from enforcing by execution the judgment rendered against the complainants by the supreme court, and that they be allowed to set off against the judgment rendered against them, the complainants a judgment rendered in favor of Allen & Taylor against Herman Scholze, and that as to the balance the defendants be required to interplead with each other.

Lomax Pittman and James E. Webb, for appellant.

Cabaniss & Weakley, for appellees.

STONE C.J.

The appeal in this case is from the decree of the chancery court overruling a motion to dismiss the bill for want of equity and also a motion to dissolve the injunction on the denials of the answer, and for want of equity in the bill. No other questions are presented for review in this court. The facts set forth in the bill are, in brief, as follows: On the 5th day of September, 1889, Allen & Taylor recovered a judgment against Herman Scholze, in the city court of Birmingham, for the sum of $105.67 and costs of suit. On June 3, 1890, Herman Scholze recovered judgment in the city court of Birmingham against Emil Lesser for $322.30 and costs of suit, and immediately thereafter transferred the same to Robert Scholze. In June, 1890, after the above-mentioned transfer and without notice thereof, Lesser purchased the judgment of Allen & Taylor against Herman Scholze. The judgment in favor of Herman Scholze against Emil Lesser was appealed by the latter to the supreme court, (9 So. 273,) appellees, Steiner and Levi, becoming sureties on the supersedeas appeal bond. In May, 1891, this judgment was affirmed by the supreme court against Lesser, and appellees as sureties on the appeal bond, with interest, damages, and costs. At the fall term, 1890, of the circuit court of Jefferson county, the Francis-Chenoweth Hardware Company recovered judgment against Herman Scholze for $281.88 and costs of suit, on which a writ of garnishment was sued out, (after the Lesser judgment was affirmed,) and was served on appellees Steiner and Levi. The garnishees answered, setting out the facts as hereinabove detailed, and suggested Robert Scholze as a claimant. After the filing of their answer, the garnishees, by their attorney, applied to the attorney of the Francis-Chenoweth Hardware Company to know if they might with safety pay to Robert Scholze the amount they really owed after deducting the amount of the Allen & Taylor judgment, and were warned not to do so. It is further averred in the bill that the transfer of the judgment by Herman Scholze to Robert Scholze "was not made in good faith, but for the purpose of hindering, delaying, or defrauding the creditors of said Herman Scholze, Allen & Taylor among the number, to whose rights the said E. Lesser has succeeded." It is also averred that Lesser had offered to set off his judgment against Herman Scholze in diminution of the judgment in favor of Herman Scholze against him and appellees, which offer was declined; that Robert Scholze had caused execution to be issued in the name of Herman Scholze for his use against Lesser and appellees for the full amount of the judgment, and was about to have the same levied on appellees' property; that executions have been issued against Herman Scholze on the Allen & Taylor judgment, but were returned "No property;" that Robert Scholze is a nonresident, and has no property in the state subject to execution, and that Herman Scholze is insolvent; that neither complainants (appellees) nor Lesser can exercise the statutory right of setting off the one judgment against the other, when executions are issued, because the judgment owned by Lesser is against Herman Scholze, while the execution issued against Lesser and appellees is in the name of Herman Scholze, for the use of Robert Scholze, who claims and controls the same. There are also appropriate averments in the bill denying all collusion in respect of the interpleader. The bill seeks to set off the Allen & Taylor judgment pro tanto against the Herman Scholze judgment, and, as to the balance of the last-named judgment, to require an interpleader between Robert Scholze and the Francis-Chenoweth Hardware Company. A temporary injunction was granted restraining the collection of the judgment by Herman and Robert Scholze until the determination of the rights of the parties. The Francis-Chenoweth Hardware Company answered, admitting all the allegations of the bill. Robert and Herman Scholze filed a joint and several answer, admitting the several judgments, but denying that Lesser bought the Allen & Taylor judgment without notice of the transfer of the Herman Scholze judgment to Robert Scholze. They deny that the transfer of said judgment to Robert Scholze was fraudulent, and also deny the right of set-off as claimed in the bill. They also set up affirmatively that Lesser bought the Allen & Taylor judgment with notice of the previous transfer of the Herman Scholze judgment to Robert Scholze. The chancery court overruled the motions to dismiss the bill for want of equity and to dissolve the injunctions. The correctness of that ruling is the question involved in the appeal. Appellees' counsel, however, as a preliminary question, urge that the assignments of error cannot avail appellant, for the reason that it does not appear affirmatively from the record that Robert Scholze was the movant in the motion to dismiss the bill and dissolve the injunction. The motion is not set out in the record, and there were several defendants besides Robert Scholze. The decree of the court simply recites that the cause was submitted "on the motion to dismiss the bill for want of equity therein, and on the denial in the answer," without stating by whom it was made. It sufficiently appears from the record that the interest claimed by Robert Scholze in the subject-matter of the controversy was injuriously affected by the decree of the court. That fact gives him the right of appeal, whether he was or not the party who actually submitted the motion upon which the decree was rendered. Furthermore, the only answer containing any denial of...