Pinkus v. Bamberger, Bloom & Co.

99 Ala. 266 | Ala. | 1892

STONE, C. J.

The present suit grew out of the claim by Pinkus of statutory exemption of personal property of the value of one thousand dollars. — Code of 1886, § 2511.

The personal property of defendant, consisting of merchandise, was attached by his creditors, commencing on March 3, 1890, and continuing for two or more days. The attachment of Bamberger, Bloom & Co. was levied on March 5. This was the first levy made on the lot of merchandise which was found in an upper room, over Friedman’s business house. On March 7 — two days after this levy — Pinkus asserted his claim of exemptions in the attachment suits. The merchandise found over Friedman’s store, and attached, was selected by him, and made the subject of his claim of exemptions. .For reasons to be presently stated, neither the claim of exemptions asserted in the attachment suit, nor the attachment suit itself, has ever been brought to trial. As we have said, the first attachment — that of Cartwright— was not levied on the goods found over Friedman’s business house.

Soon after the levy of the attachments, the attaching creditors, except Cartwright, who was-first in point of time, filed bills against Pinkus and Cartwright, charging collusion and fraud in the asserted claim, and in the attachment sued out by the latter, and praying to have said first attachment, and the claim it sought to enforce, displaced, and to have the claims of complainants paid, in preference to the alleged claim of Cartwright. Against these suits, which for the present service were consolidated, Pinkus, in April, 1890, renewed and re-filed his claim of exemption. We say renewed, for it specifies the same property to which claim had been interposed in the attachment- suits on March 7. This was but a continuation of the original claim first filed, for the several bills filed, against which the claim was set up, were, for all practical purposes, only a continuation of the suit and contention inaugurated by the attachments.

This claim of exemptions being refiled in the chancery causes, the complainants gave written notice, demanding a verified inventory under section 2525 of the Code of 1886. An inventory was filed, the sufficiency of which was excepted to by complainants. The court overruled this exception, and thereupon the complainants filed a sworn contest of the exemption, under section 2520 of the Code. The contest asserted that, in the belief of affiant, the claim was “invalid entirely.”

We hold that the chancellor did not err in holding the inventory rendered in this case sufficient. The effects of the petitioner had been attached, and were in the hands of the sheriff. In such conditions, it can not be presumed, or assumed, that he could give a fuller or more particular description than he did give. It results that the question— the only question — left for determination in the lower court, was whether petitioner was entitled to exemption of personal property, and the extent of his rightful claim. He made oath that he had no money, and that the property set forth in his inventory embraced his entire personal effects, “except his wearing apparel.”

There is testimony in this record bearing on the relations and transactions between Pinkus and Cartwright, the first attaching creditor; and it is contended that these transactions are not consistent with fair dealing. We hold, however, that on the issue presented by this record such inquiry was wholly immaterial, except to the extent, if any, it showed that Pinkus had moneys or other effects which he failed to discover in his inventory. No matter how fraudulent his conduct and intention may have been, if he was a resident of Alabama, he was entitled to have set apart to him, as exempt from his debts, one thousand dollars in value of his personal property, to be selected by - him, — Code of 1886, §§ 2515, 2521. But liis rightful claim on this account did not, and could not, extend beyond the one thousand dollars in value. There was testimony tending to show that the goods claimed exceeded $1,000 in value. If such was found to be the- case, then the claim should have been disallowed for all in excess of the $1,000.

The real contest in this case is over certain deductions which the primary court made from the thousand dollars claimed by the petitioner. And, first, on account of certain moneys alleged to have been traced to his possession between the time when he first made his claim, and the filing of his inventoiw. It was shown in the testimony of Pinkus himself that, between the first filing of his claim of exemptions, and the filing of his inventory, he received from the insurance companies, as return premiums on the cancelled policies he had held on his stock of merchandise, the sum of $133.87. During the same time, he testified, he paid out $238.18— $190 to one person, and $18.18 to another. The payment of these sums shows that during that time he had in his possession at least as much money as the sums he paid out. These belonged to his inventory, and he must not be permitted to wrong his creditors by such payment. He must account for the money he thus held, or received as so much of his exemption.

It is claimed, and the primary court so held, that other moneys were traced to the possession of Pinkus. There is no testimony which shows that he did not utilize the money he received in the return premiums, in making the payments he admits he made, nor is any other money traced to his possession during that time. "We can not, in the entire absence of testimony on the question, presume that he did not use the return premium money in these payments. We place the reduction of his exemption claim on account of moneys traced to his possession at $238.18.

Another reduction claimed and allowed arose as follows: Pinkus owed Eriedman sixteen hundred and fifteen dollars. Just preceding the issue and levy of Cartwright’s attachment, he paid this debt in the following manner: He traded and sold to him, Eriedman, his notes and book accounts, amounting to about twenty-one hundred dollars. This was an absolute sale, and an absolute payment; but it was agreed that, if Eriedman realized more from the claims thau the amount due him, he was to pay the surplus to Pinkus. There was no testimony as to the amount collected on the notes and accounts, or to what extent they were collectible. The court deducted the sum of the excess of these claims over the amount due Friedman, from tlie exemption he allowed to Pinkus. In', this the court erred. There was no reliable testimony that any sum ever would accrue to petitioner from that source ; and if anything should accrue, no data were furnished for ascertaining its amount or value.

Notwithstanding we decline, for the reasons stated, to charge Pinkus with this balance, as a discount pro tanto from the amount of his exempt personalty, still we hold that it should have been noticed and embraced in his inventory. It was money to become due to him, in the event an excess should be realized; and whatever the sum might prove to be, his attaching creditors were entitled to it, to be reached, perchance, by garnishment.

It results from what we have said that Pinkus, under his claim, was entitled to personal property of the value of one thousand dollars, less two hundred and thirty-eight 48-100 dollars. This leaves for him, and subject to his rightful claim, seven hundred and sixty-one 52-100 dollars;' $761.52.

Reversed and remanded, to be disposed of on the principles we have declared.

Reversed and remanded.