Carter v. O'Bryan Bros., 105 Ala. 305

Carter v. O'Bryan Bros.

105 Ala. 305 | Ala. | 1894

HARALSON, J.

1. There was no error in the refusal of the court to quash the writ of attachment, in overruling the demurrer to the answer filed by plaintiff to the motion to quash, and in refusing to strike the cause from the docket.

It is true, a justice of the peace can not issue an attachment returnable to a circuit court out of his own county. — Code, § 2931. The facts alleged in the answer to the motion show — and the proofs in . the affidavit for the attachment, the attachment bond, the recitals in the affidavit of claimant made under the statute by way of propounding his claim, and those in his claim bond, all show — that the words, “Colbert county,” as employed in the attachment, was a clerical mistake for the words Lawrence county, and how the mistake occurred, — that a printed blank attachment for §uch suits prepared for use in Colbert county was, in this instance, used by the justice in Lawrence county, in issuing the attachment, and by mere inadvertence, the word Colbert was not stricken out, and the word Lawrence inserted in its place, — whereas, in all the other attachment papers, it is shown, that the attachment was in fact issued returnable to the Lawrence circuit court. No one was misled by it. The sheriff made the levy and returned the papers to Lawrence, the defendant appeared in that court and pleaded, and the claimant made his affidavit and claim bond, which, recited that the writ was returnable to that court. This was a mere defect or irregularity ; and section 2998 of the Code provides that any defect of form or substance in the attachment writ is amendable, at the instance of the plaintiff. — Drake on Attachments, § 416.

*3142. In Goldsmith v. Stetson, 39 Ala. 189, it was held, that a judgment in a suit commenced by attachment, the writ in which was void, because issued by an officer not authorized by law to issue attachments, was nevertheless valid, because the defendant in attachment appeared in court, thereby waiving any defect in the process or its service. The defendant in this case appeared in the circuit court of Lawrence county, at the Fall term, 1892. of that court, and filed pleas in bar to the suit. He thereby admitted himself as being properly in court and waived any defect or irregularities that existed in the issuance of attachment which would have rendered it void.—Rosenberg v. Claflin Co.,95 Ala. 252; Birmingham Flooring Mills v. Wilder, 85 Ala. 593; Lampley v. Beavers, 25 Ala. 534. And the claimant, on the trial of the right of property, as is well settled, can not take any advantage of defects or irregularities in the process levied, which do not render it absolutely void.—Ellis v. Martin, 60 Ala. 394; Jackson v. Bain, 74 Ala. 330; Sandlin v. Anderson, 76 Ala. 405; 1 Brick. Dig. 165, § 155; 2 Ib. 480, §§71-73; Drake on Attachments, § 697. After defendant’s appearance and plea, claimant, no more than he, could setup any defect in the attachment, and move therefor to quash or strike the cause from the docket.

3. On the trial of the motion to quash the writ and of the claim suit, there was no error in allowing the plaintiff to introduce the attachment writ, the affidavit and bond for attachment, the pleas of the defendant in attachment, the affidavit of the claimant that he was the owner of the property levied on, his claim bond, and the agreement of plaintiff, the defendant and claimant as to the levy, return of the sheriff, and the value of the property levied on and claimed. The evidence was within the issues tried.—Schamagel v. Whitehurst, 103 Ala. 260; Gug v. Lee, 81 Ala. 163; Mayer v. Clark, 40 Ala. 259.

4. The levy was made in this case by George S. Weaver, the sheriff of Colbert county, on the 6th of January, 1892. It would seem he did not return the original and copies of the bond and affidavit, certified by him, to the circuit court of Lawrence. It was shown that he had become non compos mentis. His successor in office was Shelby Grisham. On the 28th of April, 1892, the defendant in attachment appeared and filed his pleas in the circuit court of Lawrence county. At *315the ensuing Fall term of that court, the claimant moved to quash the attachment, on the ground heretofore noticed, which being overruled, on motion of the plaintiff, the court ordered the sheriff of Colbert, to return to that court (Lawrence circuit) “the original attachment by him levied upon the property described in his levy, and true copies of the bond and affidavit made by claimant to try the right of property in this case, certified by him to be correct,” and. “return the original bond and affidavit to try the right of property, and a true copy of the attachment bond and affidavit, certified by him to be correct, to the circuit court of Colbert county,” with which order, as was shown, Shelby Grisham, the then sheriff of Colbert county complied, on the 31st December, 1892. This order was made, in order that the provisions of sections 3010 and 3012 of the Code might be complied with. The sheriff having failed to do so, it was competent for the court to make the order. The objection that the sheriff, who made the levy and who had failed to make the proper-returns, could alone make them, and that his successor, in compliance with an order of the court to do so, could not make them, was without merit: The duty to be performed attached to the officer, and was an official, not personal, duty.

5. The plaintiffs requested 9 written charges, which were given, all of which had reference to the sale made by defendant McGwier to claimant, Carter, which is assailed, on the grounds that it was fraudulent; made to hinder, delay or defraud the creditors of said McGwier. The claimant requested twelve which were refused. To the giving of charges for plaintiffs, and to the refusal to give those requested for claimant, the claimant excepted and assigns as error.

On the errors assigned for the giving and refusal of charges, the claimant’s counsel have submitted no argument, further than to say in their brief on the subject of charges, that “The points raised by the errors assigned to the giving of special charges on behalf of plaintiffs- and to the refusal to charge specifically, as requested by claimant, go to the effect of the solvency or insolvency of McGwier at the time of the sale to Carter. If McGwier was solvent at the time of the conveyance to Carter, then the creditors can not complain, even if fraud intervened in the transaction.” Citing Waits *316Fraud Con., § 95. The citation does not support the contention. It has reference to voluntary conveyances; by a solvent person ; but as to these, it is there stated, that it must clearly appear that they were not made to hinder, delay or defraud creditors of the grantor.

There is no uncertainty in the decisions of this court upon the proposition suggested by counsel; for, we have repeatedly held, that a debtor possessed of ample means to satisfy all demands against him, as well as an insolvent debtor, may be guilty of a fraudulent intent in the sale of his property, as by converting it into money for the purpose of putting it beyond the reach of his creditors ; and a vendee who purchases with a knowledge of such fraudulent purpose, or with knowledge or notice of facts, calculated to put a reasonable man on inquiry, which if followed up would lead to a discovery of the fraudulent intent, will not be protected.—Smith. v. Collins, 94 Ala. 404; Dickson v. McLarney, 97 Ala. 383; Carter v. Coleman, 82 Ala. 181; Seals v. Robinson, 75 Ala. 369.

The appellant’s counsel, having presented no argument to sustain assignments of error on the charges given and refused, and having insisted upon no error in their giving or refusal, except the one we have just considered, must be held to have waived all others, if they exist. We are not inclined to review charges, especially such a multitude as are here presented, the vices of which, if existing, counsel for appellant themselves decline, for the best of reasons no doubt, to ascertain and point out.—Williams v. Spragins, Buck & Co., 102 Ala. 424; Syllacauga Land Co. v. Hendrix, 103 Ala. 254.

It is unnecessary to consider the ruling of the court on the introduction of evidence. It is not insisted on in argument of counsel.

Affirmed.