47 So. 292 | Ala. | 1908
This is an action of detinue to recover certain personal property described in the bill of complaint. In addition to the plea of the general issue,
The third plea, in substance, shows that the defendant was, on his own petition, adjudicated a bankrupt in the District Court of the United States at Birmingham, Ala., on the 2d day of November, 1905; that while the bankruptcy proceedings were pending in said court, and after the property of the bankrupt had been committed to the hands of a receiver, the plaintiff filed their petition in said bankruptcy proceedings, claimed title to the property here sued for on the ground of fraud practiced on them by the defendant in obtaining the possession thereof. It is averred that a trustee of the bankrupt’s estate was appointed, and that, after the title to the property here involved had vested in the trustee, defendant effected a composition with his creditors. It is then averred that by the decree of the court on a day in February, 1906, “the said composition was confirmed and said bankruptcy proceedings were dismissed, and that by said order of dismissal the rights of the plaintiffs to the said property were adjudged adversely to them, and the title to the property was vested in the defendant.” It is then averred “that the claim to the said property so asserted in said bankruptcy proceedings is the same claim under the same right and title as is asserted by plaintiffs in this cause.”
It is clear to our minds that the demurrer to this plea was well sustained, on the fourth and fifth grounds. It does not appear from the plea that the dismissal of the bankruptcy proceedings involved the merits of plaintiffs’ title, nor, indeed, that plaintiffs’ claim was in any
- The averments of plea 3 are adopted by plea 4; and that plea further avers, in substance, that “pending the bankruptcy proceedings to the said petition for composition these plaintiffs entered their appearance in opposition to the confirmation of said composition as creditors in bankruptcy, and they claimed to be creditors by virtue of the sale to this defendant of the goods described in the complaint herein, and are now estopped to set up title or right of possession to the said above-described property.” We think the ground of demurrer to- this plea, “that it does not appear that such opposition to the composition was not disallowed on the ground that plaintiff was not a creditor of defendant in said plea al
The gist of the fifth plea is that the plaintiffs have elected to proceed in the District Court of the United States at Birmingham to litigate their title to the goods sued for, and, therefore, that the present suit should be abated. But the plea fails to aver or shoAv that the defendant here is a party to the suit'pending in the District Court, and, construing it most strongly against the defendant, he is not a party to that litigation. Hence the demurrer to the plea Avas properly sustained. — -Foster v. Napier, 73 Ala. 595.
The judgment of the trial court is affirmed.