Balch, Price & Co. v. Klein Furnishing Co. , 121 Ala. 435 ( 1898 )

MoCLELLAN, C. J.

— There may be tivo or more grounds upon which the conclusion of the city court might be sustained, but we will consider one only, regarding that as quite sufficient to an affirmance of the decree. It is this: The bill fails to aver that the Klein Furnishing Co. has any cause of action or right of recovery against tlie other respondents, the Enslens, and the Jefferson County Savings Bank in the actions now pending on the attachment bond. - The theory of the bill is, and it can only be maintained upon the idea that Enslen ‘wrongfully sued out an attachment against the Klein Furnishing Co. the complainants’ debtor, and had it levied on the debtor’s property. If the attachment was not wrongful, not only are complainants not injured by it, since its operation only is to give priority to the diligent creditor, which the law furors, but the common debtor, the Klein Furnishing Co. has no claim whatever against the attaching creditor; and when the bill fails to aver the wrongfulness of the attachment, it also fails to show the existence of the alleged equitable assets which it seeks to subject to the debts of the complainants. The demurrer was therefore properly sustained and the bill dismissed (the complainants not desiring to amend).

Affirmed.