Ware v. Seasongood

• Decision Date: 14 April 1891
• Citation: 92 Ala. 152,9 So. 138
• Parties: WARE ET AL. v. SEASONGOOD ET AL.
• Court: Alabama Supreme Court

9 So. 138

92 Ala. 152

WARE ET AL. v. SEASONGOOD ET AL.

Supreme Court of Alabama

April 14, 1891

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

The bill in this case is filed by the appellees, Seasongood Menderson & Co., against the appellants, and seeks, by the issuance of an equitable attachment against certain property specifically described in the bill, to collect a debt due to them by Robert Y. Ware, Jr., an insolvent debtor. The averments of the bill, the prayer for relief, and the parties defendant are the same as found in the statement of facts in Ware v. Shoe Co., ante, 136, with the exception of the additional prayer for equitable attachment. The bill was properly sworn to. Upon its presentation to the judge of the city court, an order was made, directing that, upon affidavit being made and bond being executed, the register should issue an equitable attachment in behalf of the complainants, to be levied upon the property described in the bill. No affidavit and bond are set out in the transcript; and on the 15th day of October, 1889, the register issued an attachment as directed by the order of the court, and upon that attachment the sheriff made his return that it had been executed by serving a writ on Robert Y. Ware, Jr., and Mary H. Ware. The defendants moved to dismiss this bill for the want of equity and also demurred to it upon the following grounds: (1) That the bill contains no equity; (2) that the complainants had never tried to redeem the property from Mrs. Wadsworth; (3) that the allegations showed that the indebtedness was past due; (4) that the bill was filed before the indebtedness of the complainants had matured. The chancellor overruled the motion to dismiss the bill, and also the demurrers thereto and his decree in this behalf is appealed from, and here assigned as error.

Tompkins & Troy and Arrington & Graham, for appellants.

Roquemore, White & McKenzie, for appellees.

STONE C.J.

The affidavit and bond for attachment are not set out in the transcript before us, but it is not shown that their absence was made a question in the chancery court. The attachment recites that they were made and given, and we suppose the recital is true. We will make no ruling on this question. See McKenzie v. Bentley, 30 Ala. 139; Smith v Moore, 35 Ala. 76. When this bill was filed, and the attachment sued out, the claim on which it was founded had not matured. It was made a ground of demurrer, and is urged before us that, to authorize equitable attachment, the debt must be due and demandable. The debt is in form a legal demand, and the theory of the bill is that it seeks to reach and condemn equitable assets. The language of the statute (Code 1886, § 3500) is that "courts of chancery may issue writs of attachment on legal demands, founded on any judgment or contract, express or implied, as attachments may issue from courts of law; which attachments operate only on the effects of the defendant held by an equitable title, or on demands owing by other persons, to which the defendant, against whom the attachment issues, is in equity entitled, whether due or not." Section 3510: "The plaintiff in such case must sustain his claim by affidavit, and give bond with surety, payable to the defendant, in double the value of the property, to be approved by the register, conditioned to pay all damages the defendant may sustain by the wrongful or vexatious suing out of such writ." These sections of the Code are preceded by section 3498, which provides a remedy in equity for the recovery of equitable debts and demands. Its language is: "Writs of *** equitable attachment may issue on equitable debts and demands in any case in which an attachment at law may issue; and in the issue of equitable attachments, and all the proceedings thereon, the provisions in relation to attachments from courts of law must be observed, except so far as may be otherwise provided in this chapter." Section 3510, supra, follows each of the sections, (3498 and 3500,) and must be understood as qualifying the remedy given by each. All these, with other sections, constitute a system, and in construing any one of them we must take the whole system into account, and thus preserve its harmony. It will be noted that the affidavit and bond required in equitable attachments is precisely the same as that prescribed in suing out attachments at law. Our statutory system, providing for attachments at law, commences with part 3, tit. 2, c. 1, art. 1, § 2929, of the Code of 1886. In enumerating the different classes of demands on which such process may be sued out, its first specification is "a debt, whether it be due or not at the time the attachment is sued out." In stating the grounds or causes for which an attachment at law may be issued, the statute (section 2930) has the following provisions: "*** (6) When the defendant is about fraudulently to dispose of his property; (7) when the defendant has fraudulently disposed of his property." We find nothing in the statutes to warrant us in holding, mutatis mutandis, that the remedy in equity is not co-extensive with that at law, so far as the character of demand and the ground of attachment are concerned. The statute in terms provides that the equitable writ may issue "on equitable debts and demands, in any case in which an attachment at law may issue;" and "on legal demands *** in such cases as attachments may issue from courts of law; which attachments operate only on the effects of the defendant held by an equitable title," etc. True, in suing out such writ, either at law or in equity, there must be a substantial conformity to what the statute prescribes....