Tower Mfg. Co. v. Thompson

• Decision Date: 17 April 1890
• Citation: 7 So. 530,90 Ala. 129
• Court: Alabama Supreme Court
• Parties: TOWER MANUF'G CO. ET AL. v. THOMPSON et al.

7 So. 530

90 Ala. 129

TOWER MANUF'G CO. ET AL. v. THOMPSON et al.

Supreme Court of Alabama

April 17, 1890

Appeal from city court of Anniston; W. F. JOHNSON, Chancellor.

Brothers, Willett & Willett and Cassady &amp Blackwell, for appellants.

Knox & Bowie, for respondents.

McClellan J.

The present bill is prosecuted by several open contract creditors of V. L. Thompson, and seeks to have the sale of a stock of goods, made by him to C. A. Thompson, set aside, on the ground of fraud, and the property subjected to the payment of complainants' several debts. The decree appealed from and now assigned as error sustained a demurrer "for that the complainants are open contract creditors of V. L. Thompson and cannot join in one bill to set aside and cancel for fraud, or any other reason, the bill of sale from V. L Thompson to C. A. Thompson." There was, of course, no privity between or among the complainants, their only connection resting in the fact that each was a creditor of V. L. Thompson, and each in separate right had a standing in court to contest the validity of the transaction by which the common debtor of each had attempted to dispose of his property with intent to hinder, delay, and defraud his creditors. Nor can any statutory provision be resorted to in justification of joining two or more simple contract creditors in a bill filed, as this one is, under section 3544 of the Code. The act of February 20, 1889, to which reference is made by counsel, as authorizing such joinder, is confined, in express terms, to bills proceeding under section 3545 of the Code, for discovery, and was intended to remedy the effect of the decision in the case of Railway Co. v. McKenzie, 85 Ala. 546, 5 South. Rep. 322. The practice, however, of joining several creditors as complainants in such bills has been so long and so universally resorted to whenever occasion required, and has passed so often unchallenged through this court, as to have become, in some sort, an established rule of pleading. It has long been held that two or more judgment creditors might unite in the prosecution of such suits, and in principle the objection to such a course on the part of judgment creditors is as tenable as that now urged to the joinder of contract creditors; and it seems to have been the general understanding of the profession that the two cases in this respect stood upon the same footing. So true was this, indeed, that...