Montgomery & Florida Railway Co. v. McKenzie , 96 Ala. 465 ( 1892 )

STONE, 0. J.

This is the second appeal in these cases. 85 Ala 546. The main question presented and argued on the present appeal is the identical question we considered and decided on the former appeal. It involves the constitutionality of section 3545 of the Code of 1886 — of the right of a creditor at large without lien or judgment to maintain a bill “for the discovery of the assets of the debtor, subject to the payment of debts.” The contention is that the statute violates section 12 of our bill of rights, which ordains “that the right of trial by jury shall remain inviolate.”

The present appeal seeks to have a revision and reversal of this court’s former ruling. The question has been ably argued. It can not be denied that many courts of the highest character have reached a conclusion that differs from ours. The authorities are collected in the brief of counsel. But they are not uniform. There are decisions of highly respectable courts the other way. — Bernard v. Myroleum Co., 147 Mass. 356; Tuft v. Pickering, 28 W. Va. 330. Bee also Balls v. Balls, 69 Md. 388; Com. v. Waller, 24 Amer. Rep. 154; 3 Pom. Eq. (2d ed.), § 1415, note 1, on p. 2183.

We have very many rulings on the identical question raised by this ground of demurrer, all sustaining the constitutionality of such legislation. Many of them are collected in the opinion rendered on the former appeal in this case. To these may be added Lawson v. Warren, 89 Ala. 584; McGhee v. Importers & Traders Natl. Bank, 93 Ala. 192; Va. & Ala. M. & M. Co. v. Hale, Ib. 542; Gibson v. Trowbridge Furniture Co., Ib. 579; Corey v. Wadsworth, (Mss.); Goodyear Rubber Co. v. George D. Scott Co., ante p. 439; Miller v. Lehman, 87 Ala. 517; Thompson v. Tower M. Co., Ib. 733; Lehman v. Greenhut, 88 Ala. 478; McCullough v. Jones, 91 Ala. 186; Tower Manufacturing Co. v. Thompson, 90 Ala. 129; Jones v. Smith, 92 Ala. 455; Sweetzer v. Buchanan, 94 Ala. 574. See also Bombeyer v. Turner, 13 Ohio Bt. 263; s. c. 82 Amer. Dec. 438. We will adhere to our former ruling, and hold that the demurrers based on this ground were rightly overruled. To hold differently would be, not only to depart from very many solemn rulings of this court in which all the members have concurred, but to overturn a remedial procedure which, it is believed,-has worked well.

When the bills were returned to the Chancery Court, amendments were offered and allowed; and additional demurrers were interposed, alleging tbat sncb amendments made a new and different case; tbat tbej sought to discover and reach assets fraudulently disposed of, and tbat the amendment was a departure from the original bill. Our statute allowing amendments in chancery is exceedingly liberal. — Code of 1886, § 3449 and note. There is nothing-in these demurrers. The bills and amended bills are in no sense incompatible or repugnant to each other. The amendments charge other secreted assets sought to be discovered and reached, and all in promotion of the one purpose of the original bill, which was to reach assets not in sight, or ' amenable to legal process, and to have them applied to the payment of the debts described in the bill. — 3 Brick. Dig., 38Ó, §§ 208, 209, 219, 220.

The decretal orders of the Chancellor are affirmed.

ThORINGTON, J., not sitting. MoOlellaN, J., dissenting.