Martin v. Carter, 90 Ala. 96

Martin v. Carter

90 Ala. 96 | Ala. | 1890

CLOPTON, J.

Section 3540 of the Code declares: “When an execution for money from any court has been issued against a defendant, and is not satisfied, the plaintiff, or the person for whose benefit such execution is sued out, may file a bill in chancery against such defendant, to compel the discovery of any property belonging to him, or held in trust for him, and to prevent the transfer, payment or deliveiy thereof to such defendant; except when the trust has been'created-by, or proceeded from some other person than the defendant himself; and the court may bring any other party before it, and decree such property, or the interest of the defendant therein, to the satisfaction of the sum due the plaintiff.” It has been said, that the statute is intended to declare and establish the principle, that a creditor, after exhausting his legal remedies, might go into a court of equity for the purpose of subjecting the equitable estate of the debtor, or other interests, which could not be made available at law, and to remedy defects in the course of procedure. Under the statute, a bill may be filed to subject property which can not be sold under execution, or reached by legal process, or for discovery in aid of the execution at law. Before the statute, the allegations of the bill were required to be specific and precise in respect to the estate or interest therein sought to be subjected; while, under the statute, the bill need only allege the supposed interests in the property of the defendant in the general terms of the act, either positively, or in the alternative.—Brown v. Bates, 10 Ala. 432.

The bill, which is filed by appellee, alleges that complainant is a judgment-creditor of the defendant, John Martin, upon which judgment execution has been issued and returned “No-property found.” It seeks to subject to the claim of complainant ■ the interest of Martin in two notes executed by the defendants, *99Wells & Moore, to Martin ancl the other six defendants jointly, and to foreclose a mortgage given hy the makers of the note to the payees to secure the payment thereof. Manifestly, the interest of Martin in the mortgaged property can not be levied on and sold under execution.—Morris v. Barker, 82 Ala. 273. It is equally manifest that the interest of Martin in the 'note can not be reached and subjected by process of garnishment; for this would be splitting up the cause of action, and rendering judgments against the makers in favor of the joint payees-severally. The interest of Martin in the notes can not be made available at law, and the bill is well tiled under the statute.

The court is authorized by the statute to bring any necessary party before it — any person having an interest in the subject-matter. Without the presence of the other payees, a decree could not be rendered separating Martin’s interest, which would be conclusive on them; they are indispensable parties.

Affirmed.