Smith v. Kaufman

• Decision Date: 30 November 1893
• Citation: 100 Ala. 408,14 So. 111
• Parties: SMITH ET AL. v. KAUFMAN.
• Court: Alabama Supreme Court

14 So. 111

100 Ala. 408

SMITH ET AL. v. KAUFMAN.

Supreme Court of Alabama

November 30, 1893

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by S. Kaufman against Joseph S. Smith and others, the sheriff, and sureties on his official bond, for trespass in seizing property belonging to plaintiff. From a judgment for plaintiff, defendants appeal. Reversed.

Garrett & Underwood and Hewitt, Walker & Porter, for appellants.

Lea &amp Bell, for appellee.

STONE C.J.

This is the second appeal in this case. Smith v. Kaufman, 94 Ala. 364, 10 So. 229. Smith, the defendant in the court below, demanded a struck jury under our statute. Code 1886, § 2752. Lists of jurors containing twenty-four names had been furnished to counsel on each side, and the process of striking had been entered upon. Each party had struck two jurors from the list, leaving twenty names not passed on. At this stage of the selection, the presiding judge propounded to the remaining twenty jurors certain inquiries, with a view of ascertaining their qualifications and fitness for the particular service they were about to enter upon. The result of this inquiry was the rejection of incompetency of two of the remaining twenty. The court thereupon ordered the sheriff to summon two other jurors, to take the places of those excluded by order of the court; and, this being done, counsel were directed by the court to proceed with the selection of the jury from the remaining twenty. This was objected to by defendant's counsel, they claiming that the selection should be begun anew from a full panel of twenty-four names. The objection was overruled by the court, and defendant excepted. The striking of jurors from the list until the number was reduced to twelve was then carried into effect. When a struck jury is demanded, each party has the right to a full panel of twenty-four competent jurors before the process of striking is entered upon; this, for the obvious reason that until all the names are before him he cannot in all cases determine satisfactorily which of the twenty-four are least acceptable to him. The law, when a struck jury is claimed, secures to each party the right to six peremptory challenges, and he cannot have the full enjoyment of this right if the names are presented in piecemeal. Dothard v Denson, 72 Ala. 541; Railway Co. v. Thompson, 77 Ala. 448; Adams v. Thornton, 82 Ala. 260, 3 So 20; McArthur v. Carrie, 32 Ala. 75.

It is contended for the appellee that the error we have been commenting on should not work a reversal, because, if an error, it was without injury to appellant. The particular ground of this contention is that the court, at the instance of plaintiff, gave the general charge that, if the jury believed the evidence, they must find a verdict for plaintiff. The answer to this is that the jury had to pass on two inquiries of fact,-the credibility of the testimony, and the amount of damage plaintiff had suffered. The appellant was as much entitled to a legally organized jury to pass on these questions of fact as he would have been if the whole controversy had been submitted to their determination. The court erred in the ruling we have been commenting on.

The record recites that it contains all the evidence. The appellant contends that there was no testimony that he (Joseph S. Smith) was sheriff, or that he ever entered upon and premises, in and upon which the complaint charges the trespass was committed; and inasmuch as the complaint charges a trespass on land, and is framed in conformity with form 26 of "pleadings in civil actions," the contention is that the plaintiff failed to prove the cause of action alleged, and consequently that the court erred in giving the general charge in his favor. It should be stated, however, that, notwithstanding the complaint, in its first clause, pursues from 26, it also charges that the defendant took therefrom the goods sued for. In this part of its averments it copies substantially all of substance that is found in form 23, "Trespass in Taking Goods." We consider it unnecessary to comment on what is said pro and con on this branch of the case. One plea interposed by defendants avers "that the said Joseph S. Smith *** levied on said property as the property of Jacob Bandman under an attachment from the city court of Birmingham, authorizing him to make said levy; the said Joseph S. Smith being at the time of said levy the sheriff of Jefferson county." It is never necessary to offer proof of what is admitted in the pleadings. The seizure of the goods was the sole subject for which a recovery was claimed,-the sole alleged trespass of which proof was made. There is nothing in this objection.

As was said when this case was formerly before us, it does not appear to have been controverted in the court below that in the sale made by Bandman to Kaufman, made, as it was, for cash, the intention of the seller was to defraud his creditors. The only really controverted question was whether Kaufman had knowledge that such was his intention, or "had knowledge of suggestive facts which, if followed up, would have led to a discovery of the fraud." Kaufman testified that he paid the full value for the goods, and there is no testimony that the price he testified he paid was less than their value. He further testified that he did not know Bandman was insolvent, and had no knowledge that his intention in making the sale was to defraud his creditors. Bandman confirmed him in this. In this state of the issue and of the testimony, the inquiry of sufficiency vel non of the consideration and its payment depended entirely on the credit accorded to the witnesses Kaufman and Bandman, with nothing positive to contradict or weaken its force. Had Kaufman knowledge of Bandman's fraudulent intent? There is no direct proof of such knowledge. Had he information of circumstances which were suspicious in their nature, and suggestive of an intention not to apply his assets to the payment of his debts; and were those circumstances sufficient to justify their submission to the jury, on the inquiry of constructive notice, either that Bandman was insolvent, or that his intention was to withhold his assets from his creditors? This is the question of merit in this suit, for on its solution depends the propriety or impropriety of the general charge given in favor of plaintiff.

In Stix v. Keith, 85 Ala. 465, 5 So. 184, a merchant being indebted at the time, sold his entire stock of goods for cash, pocketed the money, went out of business leaving his debts unpaid, and became insolvent. An attempt was made by creditors to subject the goods in the purchaser's hands to the payment of their claims, and the question was whether Keith, the purchaser, was chargeable with constructive notice of Fennell's fraudulent intent. He denied knowledge that Fennell was indebted, or intended to defraud his creditors. In that case Keith had first purchased a half interest in the merchandise, thus becoming a copartner with Fennell. Twenty days later he purchased the remaining half interest. He purchased only the goods, and did not purchase the bills receivable. He purchased for money, which he paid. Keith testified that Fennell informed him that he owed but little, which he could pay at any time. He also testified that Fennell offered to show him (Keith) his books, but he said he felt no interest in them, and did not examine them. That suit, like the present one, was an action of trespass by the purchaser for the wrongful taking of the goods. The following charge, among many others, was asked by defendant, refused by the court, and an exception reserved: "(18) If the jury believe from the evidence that, prior to and at the time of the alleged sale and purchase of the goods, Keith and Fennell were partners in the mercantile business, that is a circumstance to which they may look in determining the question as to whether Keith knew of Fennell's insolvency, or by reasoanble diligence had opportunity to know it; and if they believe from the evidence...