Stevens v. Feeder

130 Ala. 604 | Ala. | 1900

HARALSON, J.

1. After introducing their judgment against the defendants in attachment, Nicholson, Blount & Go., and proving that at the time the attachment to issued and levied, said defendants were indebted to them in the amount sued for, and for which judgment was rendered, plaintiffs offered in evidence their affidavit for garnishment, the writ of garnishment and the answer of the garnishee. The claimants objected to the introduction of the answer of the garnishee, as being immaterial, illegal and irrelevant, which objection was overruled. The answer was subject to neither of these objections. It was a part of the proceedings in the cause, and the very basis upon which tlmy rested.

2. T. L. Bryan, the deputy sheriff who levied on and took possession of the property, when being examined as a witness for plaintiffs, was asked on cross-examination by claimants, if Ií. A. Blount did not ask his permission “To take out of the stock of goods you were about to levy upon, a small supply of provisions and food, and that in connection with this request, that Blount told yon that he did not have in his house any provisions or table supplies at all ?” What relevancy to the issues this fact, if true, liad, either to benefit or prejudice the claimants, we do not understand. Blount was not a party to the suit, and was the husband of one of the partners of Nicholson, Blount & Co. The evidence was entirely irrelevant, and objection to it was properly sustained.

3. The witness, Bostick, testified that Nicholson, one of the defendants in attachment, left Dothan, stating that he was going to Savannah, G-a., -where the claimants lived, and that early Monday morning following, the day claimants’ attachment against Nicholson, Blount & Co. was sued out, and after his return from Savannah, a® the proof showed, witness saw said Nicholson entering the. front yard of B. I. Moody, the attorney of claimants who sued out the alleged collusive attachment against said firm, and that said Nicholson requested witness not to toll H. A. Blount, that he, Nicholson, went to see Moody or went in Moody’s house. There appears to have been no objection to this evidence as it was? brought out. The 'Claimants afterwards objected, to that portion of the testimony of the witness respecting his conversation, as it is stated, with Nicholson, and moved the court to exclude it, because it was illegal and irrelevant, hearsay, and because it was not shown that claimants were present. The motion was overruled. Passing the suggestion, that the claimants waived their objections bv not insisting on them in time, the evidence was not illegal nor irrelevant. The attachment of claimants is assailed by plaintiffs, on the ground of collusion between them and Nicholson, to have the same issued to binder, delay and defraud plainti^s and the other creditors of said firm, and there was evidence tending to prove that fact. All that Nicholson and the claimants said or did, at or about the time, as tending to prove this material issue was pertinent to the trial. Tt was shown, that Nicholson visited claimants in Savannah, returned to Dothan with Harris, their agent, and immediately the attachment was sued out. bv claimants, through Moody, their attorney. Certainly the visit of Nicholson to the attorney’s house, earlv in the morning of the day the attachment was sued out and levied, and that Nicholson requested witness not to speak to Blount about this visit, was pertinent.

4. Tt was shown, that on the 29th of June, 1897, Nicholson, Blount & Co. executed and filed a bond with the clerk of the court to dissolve the garnishment, which was approved the following dav. and the $1,400 garnished was paid to Moodv, claimant’s attorney, who sent the money to them, and that claimants procured sureties to °'o on said bond- bv indemnifying them. The claimant's oldeetedto the introduction of this bond in evidence. for that it was illegal and incompetent evidence, and thn bond did not. tend to prove fraud or collusion in said attachment, “occurring as it did long after, instead of urior to. or at the time the attachment was issued,” It is not perceived, how the bond could have been executed prior to the issuance of the attachment it Avas given to dissolve; the objection, that its execution did not tend to show fraud or collusion, 'because its execution was long after, instead of at the time the attachment 'was issued, .seems to admit, that if it had been made at the time the attachment was issued, — a performance it would seem to have been impracticable, —it would have evidenced fraud and collusion. The evidence was not subject to the objections made.

5. There was evidence on the part of plaintiffs tending to show the fraudulent and collusive issue of cl aim-ants’ attachment; and, on the other hand, the evidence of claimants, for the most part, tended to show that there was no fraud or collusion. There was also, if that were important, evidence tending to show the insolvency and failing condition of defendants in attachment.

It is well settled, “that a writ of attachment issued collusively between creditor and insolvent debtor, for the purpose of giving preference, and with intent to effect a fraudulent transfer of the debtor’s property to the plaintiff in attachment, through the machinery of the attachment process, is a void suit or proceeding within the meaning of section 2156 (1735)'of the Code.’’ Cartright v. Bamberger, 90 Ala. 405, 407; Comer v. Heidelbach, 109 Ala. 220; Gassenheimer v. Kellogg, 121 Ala. 109; Collier v. Wertheimer Shoe Co., 122 Ala. 320; Rice v. Eiseman, 122 Ala. 343; First Nat. Bank v. Acme White Lead & Color Co., 123 Ala. 344; Stern v. Butler & Stevens, 123 Ala. 606.

In order to effect a collusive attachment such as the statute avoids, it is not required that a contesting creditor shall show that the defendant in attachment was insolvent or in failing circumstances. The statute makes no such condition.

There was no error in giving the charge requested by the plaintiff.

The several charges requested by claimants were, under our rulings, properly refused.

We are not prepared to say, that under the evidence, the lower court erred in overruling the motion for a new trial.

Affirmed.