Nix v. Winter , 35 Ala. 309 ( 1859 )

A. J. WALKEN, O. J.

It is contended that the chancellor’s decree, granting relief to the complainant, is erroneous, because the bill does not allege the proceedings upon the complainant’s judgment necessary to authorize a resort to the chancery court by a creditor. It is averred in the complainant’s bill, that two executions issued upon the judgment, one to Goosa, and the other to Balias county, both of which were returned “ no property found.” The decision in Brown k Bimmock v. Bates, 10 Ala. 432, is, that it is not indispensable for the creditor’s bill to show that the execution was issued to the county of the debtor’s residence, and returned “ nulla bonabut, if there was not an execution to that county, it was a matter of defense to be made by the defendant; and that to make the defense available, it was incumbent upon the defendant to show that he not only resided, or had a place of business, in some other county than that to which the execution issued, but also that he had visible property therein, out of which the execution might have been satisfied, if the complainant had exercised due diligence to ascertain the fact. This authority is fatal to the objection, that the bill does not show an issue of execution to the proper county.

[2.] It is'next objected, that paragraphs seven and eight of the bill contain allegations of the information and belief of the complainant, and not of facts. This objectioii is founded in a misapprehension of the paragraphs. They aver facts upon information and belief, and not simply the information and belief of the pleader; and therefore do not fall within the principle settled in Jones v. Cowles, 26 Ala. 612.

[3.] The principle settled in McLane & Plowman v. Riddle & Burt, 19 Ala. 180, is conclusive upon the question of the sufficiency of Semple’s answer to establish, that the right to the judgment was in complainant, and not in him.

[4.] No authority is cited to show that the accommodation acceptor of the complainant’s principal debtor was a necessary party, and we perceive no sufficient reason why he should be.

The decree of the court below is affirmed.