Weingarten v. Marcus

• Citation: 25 So. 852,121 Ala. 187
• Parties: WEINGARTEN ET AL. v. MARCUS ET AL.
• Decision Date: 19 April 1899
• Court: Supreme Court of Alabama

25 So. 852

121 Ala. 187

WEINGARTEN ET AL. v. MARCUS ET AL.

Supreme Court of Alabama

April 19, 1899

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Bill by Levi Weingarten and others against S. Marcus, Jr., and others. From a decree dismissing the bill, complainants appeal. Reversed.

The bill in this case was filed by creditors of S. Marcus, Jr. alleging that the latter had confessed judgments in favor of several different parties, including Ike Adler; that all of said judgments were fraudulent and void; that execution had been issued thereon, and levied on a stock of goods belonging to said Marcus, which was at that time in the possession of said sheriff under said levies; and that, if he was allowed to sell the property, and pay over the money, complainants would be without relief, and would lose their debts. All of the plaintiffs in said judgments and George M. Morrow sheriff, were made parties defendant. The prayer of the bill was that the judgments might be set aside and the property levied on condemned to the satisfaction of complainants' demands; that, in the meantime, if the sheriff should have sold said goods, he be required to hold the proceeds of sale to satisfy the claims of orators, and that the other defendants be held trustees in invitum of said property. The bill was afterwards amended by striking out all the parties defendant except Ike Adler. In the amended bill it was alleged that Marcus had fraudulently confessed judgment in favor of Adler, and that execution had issued on such judgment, and had been levied on the stock of goods of Marcus; that said stock had been sold by the sheriff, and had been purchased by Adler. It was further averred that said Ike Adler had been secretly interested in the business carried on by Marcus on account of which complainants' debts were contracted, and was interested in the business; that the debt on which the judgment was confessed was simulated, and used fraudulently to transfer the property to Adler. There were other allegations of fraud, not necessary to be stated. The defendant Ike Adler moved to dismiss the bill for the want of equity. Upon the submission of the cause upon this motion the court sustained the motion, and ordered the bill dismissed the complainants being allowed 30 days within which to amend. From this decree the present appeal is prosecuted, and the rendition thereof is assigned as error.

Mountjoy & Tomlinson, for appellants.

Caboniss & Weakley, for appellees.

SHARPE J.

The bill contains ample averments to bring the case within section 818 of the Code. Besides the charge of actual fraudulent intent actuating the confession of judgment in favor of defendant, it is alleged that the debt upon which the judgment was founded was simulated, which fact would of itself vitiate the transaction as against existing creditors. By the uniform decisions of this court a suit which is collusive, being begun and carried on for the purpose of hindering, delaying, or defrauding creditors by the creation of a lien upon the property of the debtor, or by placing the property in the custody of the law or otherwise obstructing the collection of rightful claims, is as rigidly condemned by the statute as a fraudulent conveyance in contract form. Cartwright v. Bamberger, 90 Ala. 405, 8 So. 264; Bamberger v. Voorhees, 99 Ala. 292, 13 So. 305; Alabama Nat. Bank v. Mary Lee Coal & Railway Co., 108 Ala. 288, 19 So. 404; Comer v. Heidelbach, 109 Ala. 220, 19 So. 719; Pollak Co. v. Muscogee Mfg. Co., 108 Ala. 467, 18 So. 611; Bank v. Laucheimer, 102 Ala. 454, 14 So. 776; Steiner v. Parker, 108 Ala. 357, 19 So. 386. It is not claimed by complainants that the specific goods can be reached under this bill, to which the transferee corporation is not a party, and any relief under it must be by personal decree enforceable by execution...