102 Ala. 207 | Ala. | 1893
Section 3545, Code of 1886, provides, that, “A creditor, having obtained a judgment at law upon which execution has issued and been returned ‘no property found,’ or a creditor without a lien or-judgment, may, in the court of chancery of the district in which the judgment debtor resides, or in the court of chancery of the district in which the judgment was rendered, file a bill for the discovery of the assets of the debtor subject to the payment of debts; and the debtor must answer on oath, and disclose all property, real or personal, in which he may have, or may claim, an interest, legal - or equitable ; all moneys, effects, or choses in action, in which he may have, or may claim, an interest, legal or equitable, where such property, effects, or choses in action, in which he has, or may claim, an interest, legal or equitable, and where such moneys, effects or choses in action may be found.” Section 3547 provides, that, ‘‘If from the answer it appears that the defendant has property, real or personal, or an interest in property, real or personal, subject to the payment of debts; or has moneys, effects, or choses in action, or an interest in moneys, effects, or choses in action, subject to the payment of debts,_ whether such property, moneys, effects, or choses in action, be within or without the 'State, the court, in term time or in vacation, must make all such orders or decrees as may be necessary and proper to reach and subject such property, moneys, effects, or choses in action, and for that purpose may appoint a receiver with authority to demand, sue for and recover, or otherwise to reduce to possession such property, moneys, effects, or choses in action; and may require the judgment debtor to make to such receiver all conveyances, assignments, or transfers, which may be necessary and proper to enable hiin to receive, or to sue for and recover such property.”
The appellees, Vance & Kirby, obtained judgment in the the court of law, on the 26 day of January, 1893, against the appellants, Sorrell, Hickman, Phil
The case comes before us from the ' decretal order of the chancellor overruling the demurrers to' the bill. Only one ground of demurrer is insisted on in the argument of appellants’ counsel, and we will consider no other. That' ground is, substantially, that complainants have an adequate remedy to enforce collection of their demand without resorting to equity to discover and s.ub•ject the-assets allegod to be concealed; and the-contention-is founded upon the fact shown by the bill that Ellis Hickman & Co. -owned the stoclr of goods sold to Conway, worth $1,800, at the time complainants filed 'the certificate of their judgment in the-office of the probate judge, which filing, it is contended, created, a .lien on the goods in complainants’ favor, enforceable by execution, which was unaffected by the subsequent sale to Conway. It is a well settled principle that if it appears that the debtor has visible property, sufficient to pay the debt, which can be reached and subjected ,by the ordinary process of levy and sale, equity will not entertain a bill for the discovery of. assets concealed, like that in the present case. Lawson v. Warren, 89 Ala. 584; Sweetzer v. Buchanan, 94 Ala. 574.- Let it1 be conceded that the defendants are in a position to insist that complainants ought to proceed to enforce a judgment lien upon property which they, themselves, have sold and óonvéyed to ánothér- — a proposition we deem it unnecessary now to consider, and to which we, by no means, commit ourselves — and there is, to, our minds, no room for argument in support of appellants’ contention. The a?t entitled, “An.act to amend an act entitled an act to provide for. the registration and lien of judgments and decrees for the payment
There was no error in the ruling of the chancellor, and his decree is "affirmed. The defendants will plead to or answer the bill within thirty days, with authority in the chancery court, or the chancellor in yacation, to extend the time on sufficient showing.
Affirmed.