Plaster v. Throne-Franklin Shoe Co. , 123 Ala. 360 ( 1898 )

McCLELLAN, C. J.

The bill ill this case was filed by the Tlirone-Franklin Shoe Co. and others, as creditors at large of Dayton Plaster, against said Plaster, Griel Brothers Co. and Steiner «fe Lobman. It avers the indebtedness of Plaster to the complainants, due prior to December 2, 1897; that on December 25, 1897, said Greil Brothers Co. and Steiner & Lobman, sued out attachments against the estate of Plaster, the former for the sum of $9,198.20 and the latter for the sum of £1828.55, and had the same levied upon a stock of goods and other property of said Plaster, all which was in the hands of the sheriff under said writs at the time of bill filed; that the affidavit made by Greil Brothers Co, for attachment affirmed “that the said Dayton Plaster is about to fraudulently dispose of his property,” and the affidavit of Steiner «fe Lobman affirmed “that the said Dayton Plaster has money, property or effects liable to satisfy debts Avhich he fraudulently Arithholds,” and that said Avrits Avere issued, respectively, upon said grounds and upon no other; that each said affirmation in said affidaAÚts Avas and is false and untrue, that there Avas and is no ground for the issuance of said attachments, and that said Greil Brothers Oo. and said Steiner «fe Lobman had no probable cause for believing that the grounds upon AAdiicli their attachments were spectively sued out, or any other ground for suing out attachments existed; that the suing out of said attachments Avas an abuse of the process of the court, and Avas done by said respective plaintiffs for the purpose and Avith the intent of procuring an unlaAAfful and illegal preference in the payment of their claims against Plaster, and Avith indent on their part to hinder, delay or defraud complainants and other creditors of said Plaster in the collection of their just demands; and “that while no grounds existed for the suing out of said attachments against said Plaster, and Avhile no probable cause existed for the suing out of the sanio, yet the said Plaster knew prior to the time that the said attachments were sued out that the same would be sued out by the said Greil 'Brothers Co. and the said Steiner & Imbuían, and that the said Plaster consented to the same being sued out against him for the purpose and noth the intent of giving to the said respective plaintiffs an unlawful and illegal preference in the payment of their said claims against him.”

It is insisted by motion to dismiss the bill for want of equity and by demurrer that the averments we have outlined present no case for equitable relief, and this upon the theory that the allegations as to- Plaster’s foreknowledge of the attachments, his consent thereto and the intent which actuated him to so consent are unsufficient to show that the attachments were collusively sued out and suffered; and that if they were not sued out and issued collusively, the facts that the affidavits were false, that there were no grounds for their issuance, that the plaintiffs had no probable cause to believe any grounds existed, and that they were sued out to secure an illegal preference and with intent on the part of the plaintiffs to hinder, delay or defraud other creditors do not bring the case within sections 818 and 2156 of the Code, and will not support a creditors’ bill to avoid the attachments and subject the attachment I>roperty to their demands.

We deem it unnecessary to discuss the question involved in this last proposition. (But see Builders & Painters Supply Co. v. First National Bank, ante, p. 203) In our viewof the case we do not get to it, holding, as we do, that the bill shows that the attachments were collusively sued out with intent to secure and to give an unlawful preference, or to unlawfully secure and give a preference, and to hinder, delay or defraud other creditors. The averments in this connection plainly and directly show that Plaster beforehand knew that the attachments would he sued out and consented that they should be sued out with a view and Avith the intention- of thereby giving to Greil Brothers Co. and Steiner & Lob-man an unlawful preference over his other creditors, whereby such other creditors, having the right to look to all his property so long as it Avas not fairly subjected by due process of law to other claims, were necessarily hindered, or delayed or defrauded in respect of their just demands. Consent is a fact, which may be pleaded and proved as a fact; and when it is given by the party prosecuted to a proceeding which would be without it adversary in character, that proceeding becomes at once collusive in character. A confessed judgment is but a judgment consented to by the defendant. A collusive decree is but another name for a con. sent decree when the consent is given under circumstances which involve bad faith and covinous purposes. The debtor's consent to an attachment, Avhen no grounds exist, made with intent to give an illegal preference or to illegally give a preference, and thereby to defraud other creditors of their equal right to subject his property, renders that attachment essentially collusive and vicious; and there is no more apt and accurate language to define and charge such vitiating collusion than that employed in this bill, viz., that the debtor Avith the intent thereby to give an illegal priority and preference to one creditor to the unlawful liinderance or delay, or the defrauding of others consented to the suing out and levy of an attachment by the one in the absence of all grounds therefor.

The bill has equity against the debtor and the attaching creditors, and it is not open to any of the objections assigned in the demurrer of Greil Brothers Oo. and Steiner & Lobman.

The demurrer of the sheriff, Ilaynes, is also without merit. Having in his possession and control the property sought to be subjected to complainants’ deb.ts he was a necessary party defendant to the bill. And like any other necessary party he can be made to discover such incidental facts essential to 'the bill as the description of the property, Avhich the bill shows he alone can discoA'er, and that he has declined to discover. And this — the bill having equity wholly apart from discovery, and the discovery being merely incident to the main equity upon which affirmative relief is sought — though the bill is not sworn to.—Lawson v. Warren, 89 Ala. 584; Burke v. Josiah Morris & Co., 121 Ala. 126. The bill, indeed, even as against Haynes is not strictly speaking a bill for discovery in any aspect.

The decree of tlie city court overruling tlie motion to dismiss and the demurrer must be affirmed.

Affirmed.