Southern Suspender Co. v. Von Borries

• Citation: 8 So. 367,91 Ala. 507
• Parties: SOUTHERN SUSPENDER CO. ET AL. v. VON BORRIES.
• Decision Date: 18 November 1890
• Court: Supreme Court of Alabama

8 So. 367

91 Ala. 507

SOUTHERN SUSPENDER CO. ET AL. v. VON BORRIES.

Supreme Court of Alabama

November 18, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Frank Von Borries, as assignee of one Pelle, against the Southern Suspender Company and others, for an alleged trespass in the levying of an attachment at the suit of the Southern Suspender Company upon certain articles of merchandise, which were formerly the property of said Pelle but were at that time in the possession of the plaintiff, as assignee. On December 28, 1887, said Pelle made a general assignment to the plaintiff of all his property "except such as is by law exempt from execution." The deed of assignment recited the insolvency of Pelle and his inability to pay his debts, and was acknowledged before the clerk of the Jefferson county court of Kentucky, and recorded in the deed-book of said county; and was also filed and recorded in the office of probate in Jefferson county, Ala. This deed of assignment was executed, delivered, and accepted in Louisville, Ky. The plaintiff, as said assignee, took possession of such goods in Birmingham, Ala., as belonged to and was the property of the said Pelle at that time including the stock of merchandise in the store described in the deed of assignment. On December 30, 1887, the Southern Suspender Company, by its attorney, made affidavit of said Pelle's indebtedness to it, and caused a writ of attachment to be issued, on the ground of Pelle's being a non-resident, and on December 31, 1887, said attachment was levied upon the said goods belonging to said Pelle which were in said store, and which were at that time in the possession of plaintiff as the above-stated assignee; hence this suit the ground of complaint being the wrongful entering upon the premises and taking possession of the goods. The plaintiff in the attachment suit, and the officer making the levy, and the sureties on forthcoming bond, were all made parties defendant to the present action. On the trial of the case in the court below, as is shown by the bill of exceptions, the plaintiff introduced in evidence the deed of assignment to show the right under which he claimed the rightful possession of the goods taken under the attachment. The defendants objected to the introduction in evidence of the said deed of assignment on the grounds (1) that the deed showed a benefit reserved to the grantor, and was therefore void as to the creditors of Pelle; (2) because the conveyance showed on its face that it was executory; (3) because the testimony was irrelevant; and (4) because the testimony was illegal and incompetent. The court overruled each of these grounds of objection, and the defendants duly excepted. There was a verdict and judgment for plaintiff, and defendant appeals.

Morris Loveman and Sterrt & Campbell, for appellants.

Sumter Lea, for appellee.

MCCLELLAN J.

The complaint contains but one count. It claims damages for a trespass by defendants upon certain land, and for wrongfully taking therefrom certain personal property. Several grounds of demurrer were interposed to it, and overruled. The action of the city court, on each ground assigned, is assigned here as error; but the argument of counsel only presents for our review the ruling with respect to the second ground. It is as follows: "For that said declaration, in the same count, alleges a trespass in taking goods and a trespass to lands." The manifest theory of this demurrer is that the action of trespass quare clausum fregit et de bonis asportavit is unknown to our law. The position is untenable. Herndon v. Bartlett, 4 Port. (Ala.) 481.

2. The bill of...