142 Ala. 604 | Ala. | 1904
The bill was filed by simple contract creditors for discovery of assets under section 819 of the Code, and to subject them to the payment of complainants’ debts due them by the respondents.
After averring that the respondents P. H. Kinney and F. H. Kinney were engaged in a general merchandise business at Nauvoo, Alabama, under the firm name and style of P. II. Kinney & Company, and that they became indebted, to complainants in the various amounts set forth in the bill, which amounts are averred to be past due and unpaid, the bill avers that the said P. H. Kinney and F. H. Kinney and said P. H..Kinney & Company have no visible means subject to legal process of value sufficient to pay the claims of complainants; that the said P. H. Kinney and F. H. Kinney have no property standing in their own name, or held by them in their names, or in the name of the said partnership of which they are members, which can be reached or subjected to iegal process for the satisfaction of the claims of the complainants but that said P. H. Kinney and F. H. Kinney and P. T-I. Kinney & Company have property, real or personal, or money, or effects, or choses in action, or they have an interest in real or personal property, or money, or effects, or choses in action which are and should be subjected to the payment of complainants’ claims, but the kind and description of the property and how the same is held, it is averred, is kept concealed and hidden out and is unknown to complainants. It is then averred that a discovery is necessary to enable com
Tested by the rules of pleading laid down in the cases of Sweeter, Pembroke & Co. v. Buchanan, 94 Ala. 574 and Pollak v. Billing, 131 Ala. 519, applicable to bills of discovery, the averments of the bill are sufficient against the first and second grounds of the demurrer. Furthermore, as to the second ground of the demurrer, the averments of the bill do not shmv that the property sought to be discovered ivoultl be exempt from being applied to the satisfaction of complainant’s debts, and this ground of demurrer seeks to introduce by demurrer' matter which is foreign to the allegations of the bill, and, therefore, it falls under the head of what is commonly characterized as a “speaking- demurrer.” — Bromberg Bros. v. Heye Bros., 69 Ala. 22; Ramage v. Towles, 85 Ala. 588.
Rule 15 of chancery practice, Code, p. 1205, provides that a bill may be sworn to by an agent or attorney, but-the affidavit must, set forth a sufficient reason why it is not verified by the complainant himself. We think the fact the complainants were absent from the State, as shown in the affidavit, a sufficient reason why the verification was not made by one of them. — Guyton v. Terrell, 132 Ala. 67.
The averments of the bill are positive and are not made upon information and belief. The affidavit positively affirms that the statements contained in the hill are true.
The point made, against this affidavit by the 4th ground of the demurrer is, that the affidavit is made, by an attorney and it is not shown in the affidavit that the affiant had any knowledge of the facts which he was verifying. We must in the absence of any thing to the contrary presume the existence of such knowledge, when the averments of the bill are direct and positive and the affiant swears positively, and not upon information and belief. In the cases cited by” appellant, namely, Pick’s Admr. v. Ezzell, 27 Ala. 623; Globe Iron Co. v. Thacher, 87 Ala. 465; Burgess v. Martin, 111 Ala. 656, the affidavits appear to have been made upon information and belief.
Affirmed.