50 Ala. 182 | Ala. | 1874
No objection was made to the form of the issue, or the pleadings, in the court below. On the trial of such an issue, the plaintiff in attachment is the actor,' and assumes to show that the assignment of the note is invalid. Grady’s Adm’r v. Hammond, 21 Ala. 427 ; Goodwin v. Brooks, 6 Ala. 836. It would seem that, if the truth of the answer is not denied, the assignment, or transfer of the note, is admitted. 33 Ala. 454. This puts the assignee, or transferee, in the attitude of a party in possession ; and this possession is assailed by the plaintiffs in the attachment. Then, the assailing parties should show that they have a better title than the claimant, who is the party in possession of the note ; because possession of property is evidence of title against all the world, save the real owner. 1 Greenl. Ev. § 34 ; 3 Phil. Ev. (C. &H. Notes), pp. 457, 458, and cases there cited. In this case, upon the pleadings shown in the record, Plummer comes into court in possession of the note in dispute, and claims to hold it as trustee of Mrs. Annie E. Johnson. Before the plaintiffs can disturb this possession, they must show that this title is insufficient. As was said by Ormond, J., in the case above cited (6 Ala. 838), “ The design of the law was to enable the plaintiff in attachment to contest the validity of the alleged transfer, or assignment.” By taking issue upon the facts thus set up by the claimant, the plaintiffs admit the sufficiency and legality of
In the case of Goodwin v. Brooks (6 Ala. 836), already above cited, this court said : “ Here, it appears, the assignee appeared in obedience to the summons ; and the plaintiff in attachment making no allegation whatever against him, the court discharged him.” “ The plaintiff in the attachment is the actor in the proceeding, and if he does not prefer his allegations against the assignee, he will be entitled to be discharged for the omission of the plaintiff to prosecute the inquiry.” In this case, the discharge of the assignee was held to be correct. 6 Ala. 838. In like manner, if the plaintiffs in attachment, in the case at bar, had offered no evidence in support and prosecution of their claim, the assignee, Plummer, should have had judgment for his costs ; and if such evidence should be offered, it should be sufficient to sustain the claim of the attaching creditors, and put the contestant on his defence. This seems to have been the construction put upon the law regulating this proceeding in the court below, in the charge complained of. This charge was correct. This disposes of the sixth specification of the errors assigned.
The charge marked 6 presents a different question. It asserts the proposition, that if Tweedy and Ashford' were served with the summons in garnishment before they were notified of Plummer’s claim, this would subject the note to the lien of the attachment in this case. The court refused this charge, and I think, properly. After the transfer of the note to Plummer, as the trustee of Mrs. Johnson, the debt secured by it ceased to belong to the defendant in the attachment, and it could not be subjected to the payment of his debts. The levy of the at
The indorsement was sufficiently stamped to give it validity. Foster v. Holly, supra. The charge marked 8 was, therefore, properly refused.
The objection to the 10th charge has already been considered. If Jobhson used the money of his wife’s separate estate, he was certainly bound to refund it, except the interest, as has already been shown. Ryan v. Bibb, 46 Ala. 323; Barclay v. Plant, and cases supra.
The charge marked 9 is in these words; “ The wife must join in a fraudulent action, before her rights can be defeated by fraud.” As a general proposition, expressed in the terms here used, this is correct. This point is, however, not elaborated or noticed in the learned brief of the appellants’ counsel. When this is the case, it is presumed that the point is not insisted on, but abandoned. 1 Brickell’s Dig. p. 102, § 285. The same may be said of the court’s ruling, which was objected to, on recalling the witness Johnson, to prove whether Mrs. Johnson owned any property shortly after the 6th day of June, 1870. This is not included among the errors assigned. And it is the practice of this court not to notice any others. 1 Briekell’s Dig. p. 102, §§ 279, 281.
A careful examination of this important and interesting case, in which I have been very much aided by the learned and suggestive briefs of the counsel for the parties in this court, leads me to the conclusion that the judgment of the court below ought to be affirmed.
The judgment of the court below is, therefore, affirmed.