57 So. 752 | Ala. | 1912
Appellee filed this his hill under section 3740 et seq., of the Code, as a creditor of J. M. Elliott, Jr., one of the appellants, for a discovery. The debt alleged to be due and owing from appellant to appellee was evidenced by a judgment in the Supreme Court of Tennessee and was for more than $30,000. There is no allegation or.insistence that any suit has been brought in this state upon that judgment; but complainant falls clearly Avithin the class of simple contract creditors .who are expressly authorized to maintain such a bill. So, under the statute, it is wholly immaterial whether the bill be treated as one by a judgment creditor or one by a simple creditor. The other appellants Avho were made parties to the bill were corporations and individuals alleged nominally to hold or control the property of the defendant Elliott, for the purpose of secreting it from the complainant and the other creditors of the said Elliott. The constitutionality and validity of the statute has been repeatedly upheld by decisions of this court, and the statute has been repeatedly readopted with that construction placed upon it. The respondents demurred to the bill, assigning numerous grounds, which demurrer was overruled by the trial court, and from that decree this appeal is taken.
We cannot agree with the contention of the appellant that the bill is not one for discovery under the statute referred to, but that it is one for the appointment of a receiver to administer upon the estate of an individual before death. It is Avholly unnecessary, under this statute, for the complainant to bring suit in Alabama upon
The bill sufficiently avers the necessity for discovery by alleging the existence of assets or property of the defendant, which cannot be subjected to legal process because it is concealed from the creditors, and that such assets can be rendered availing to the creditors by means of the discovery sought. It is not necessary that the bill should show any fraudulent conveyance or disposition, other than the concealment of the assets which, if revealed or discovered, would be liable to the satisfaction of complainant’s debt. This the bill 'unquestionably does. — Pollak v. Billing, 131 Ala. 519, 32 South. 639.
The bill is not a mere fishing process, to discover, by chance, whether the defendant has such property — property which may be ascertained and subjected by discovery, but not by legal process; but it alleges as a fact the existence of such property, and that it can be discovered and subjected only by the aid of the chancery court. It is not necessary that the bill should describe the hind, character, or location of the property sought to be reached in any more certain or definite'terms than are employed in this bill, for the reason that it is one of the objects of the bill to discover these facts, which are unknown to the complainant, though known to the defendant. It is necessary only that the bill should show the existence of such property, and that it can, by the equitable process sought, be subjected to the payment of complainant’s debt; nor does it destroy the equity of the bill if it should show that the property sought to be discovered was beyond the limits of this state, because the debtor himself was brought into- and subjected to its jurisdiction, and the statute makes pro
As was said by Stone, O. J., in Montgomery County v. McKenzie, 85 Ala. 549, 5 South. 322, when any contention or controversy contains within it some element of purely equitable cognizance and a court of chancery acquires jurisdiction of the controversy for the purpose of adjusting the equity, it does not confine or limit its remedial administration to the mere adjustment of the equity, but retains the case and administers complete "justice between the parties, although in doing so it may be called on to decide, and does decide, some questions which would otherwise be of purely legal cognizance. Consequently the bill is not demurrable because some additional relief is sought, .that may be obtained, in connection and conjunction with the discovery which is the main equity upon which the bill rests.
The bill does allege that the facts sought to be discovered are material, and that the ascertainment of such facts is indispensable to the satisfaction of complainant’s debt or demand against the defendant. The allegations also sufficiently show that the complainant has no other means of ascertaining the facts which are sought to be discovered, and that those facts are peculiarly and solely within the knowledge of the respondent.
These are the only grounds of demurrer insisted upon, and we do not think that any one of them is well taken. The decree of the chancellor overruling the demurrer is therefore affirmed.
Affirmed.