Sweetzer, Pembrook & Co. v. Buchanan

94 Ala. 574 | Ala. | 1891

COLEMAN, J.

— Complainants’ bill was filed under sections 3544-3547 of the Code, inclusive, as amended by act of the legislature of 1888-9, p. 96. These sections enlarge the remedy of a simple-contract creditor, and under these provisions he may maintain a bill for discovery and relief in certain cases, for which the general principles of courts of equity, without the statutory aid, would be wholly inefficient. The scope and effect of these remedial statutes, to some extent, have been ascertained and declared by former decisions of this court, and we are satisfied with the correctness of the conclusions reached in those adjudications upon the questions involved. — Montgomery & Fla. R. R. Co. McKenzie, 85 Ala. 548; Lawson v. Warren, 89 Ala. 585; McCullough v. Jones, 8 So. Rep. 696, 91 Ala. 186.

The present bill avers and describes the indebtedness of the defendant Thos. G. Buchanan to complainants, and further avers that he has no visible property or other means accessible to legal process from a court of law to satisfy the plaintiffs’ demand. The bill further avers, substantially, that he “has property, or an interest in property, real or personal, or money or effects or chos'es in action, subject to the payment of his debt;” but that the kind and description of property, and how held, is kept concealed and hidden out, and is unknown to complainants, and that a discovery by the defendant is necessary to enable complainants to reach and subject it to the satisfaction of their demand. The bill further avers that this property or interest was conveyed away, and is kept concealed by the defendant debtor, for. the purpose of hindering, delaying, and defrauding his creditors.

The bill is not liable to the objection that it is a mere fishing process to discover as by chance whether the defendant has such property. The averments are, that he has property liable to the debt, but that defendant has so manipulated and concealed it that it can not be reached by the ordinary process from courts of law; that its kind and character and whereabouts are unknown, and can not be discovered without the aid of a court of chancery.

An accurate or any description of the property, further than to show that it is liable to the payment of defendant’s debt, is not required in such cases ; neither is the objection available that the property is beyond the limits of the State. The defendant debtor is in court in person, subject to its jurisdiction, and the statute itself makes express provision for such cases, whether the property be “within or without” the State. Code, § 3547. The court may require the debtor to make all conveyances to a receiver which may be necessary to enable him to receive, sue for, and recover such property.

The court erred in sustaining defendant’s demurrer to the bill.

In the case of Lawson v. Warren, 89 Ala. 584, it was declared that bills like the present one should be sworn to.

Reversed and remanded.