Jaffray v. Smith , 106 Ala. 112 ( 1894 )

McCLELLAN, J.

— The claim, which was sustained by the chancery court, that the sureties on the several claim bonds given by D. F. Myers, assignee &c., were discharged from all liability thereon, is rested upon three distinct grounds : First, that the agreement of counsel representing the several attaching creditors and D. F. Myers, assignee and claimant, by which the result of each of the suits was made to depend upon and follow the issue of the one of them which only was actually tried, was an authorized modification of the contract of suretyship, and therefore discharged the sureties ; second, that the condemnation of the property in each case was to “the satisfaction of the attachment,” and not to “the satisfaction of the judgment” against the defendant in the attachment as stipulated in the bonds; and, third, that the value-of the property was assessed by the jury under and in accordance with another agreement between the claimant and the plaintiffs in the several attachments, and further that this assessment was in bulk and not of each article of the property.

1. In respect of the first of these grounds, it is to be observed in the outset that the facts averred, strickly speaking, do not present an inquiry whether there was an unauthorized change by subsequent agreement between the plaintiffs and the claimant of the complainants’ contract of suretyship, but, if these facts involve any invalidating consequences to the bonds, it is by way of showing that the contingency upon which the sureties’ obligation was to become absolute has not transpired. That contingency was the finding by the court in the claim suits that the property as against the claimant was subject to the demands of the plaintiffs against Mullane, and the real position of the sureties is, not that anjr stipulation of their undertaking has been altered in any respect, but that there has not been that finding of the superiority of the plaintiffs’ claim to the property over that of their principal, Myers, upon which alone the liability from which they now seek to escape became fastened upon them. In determining the question, it is to be constantly borne in mind that Myers alone, on that side of the controversy, was a party to the record in each of the cases. Upon him devolved the duty and in him was the right to conduct and control the litigation to a final conclusion. And in this conduct and control of the claim suits, it was not only his right, but in a sense his duty, to make all such agreements as are usual and customary between parties to causes pending in the courts* as to the course of proceeding ; and the only limitations upon the exercise off this right and power in cases like this are that the agreements shall be made in good faith and. without collusion prejudicial to parties incidentally or ultimately interested, and that thereby a fair and impartial finding and adjudication of the fact upon which the liability of the sureties depends shall not be precluded or endangered. Here all the claim suits were pending in the same tribunal, and each of them presented precisely the same issues on the record, and the determination of these identical issues depended upon precisely the same evidence in each case. That one which was actually tried was decided upon a question of law which was common to all of them. Under such circumstances it is usual and customary for parties to agree, to try all the cases together, or, which is essentially the same thing, that the verdict and judgment in one actually submitted to the jury shall be the verdict and judgment in all. Such agreements save the time of courts and much trouble, time and costs to the uarties, and may well be of great benefit to persons only indirectly and ultimately liable as are the sureties upon claim bonds. If each of these cases had been separately tried, there was no possibility from the standpoint of the agreement, and is none from any point of view, that the finding and judgment in any one of the cases would be or could have been at- all different from the finding and judgment which was entered upon in each one of them by virtue of the agreement that the trial of one should settle all the cases, except that the cost, bills against those complainants in the causes determined according to the agreement would have been greater. Upon the foregoing considerations, we are clear to the conclusion that, so far as this point goes, there was a regular and valid finding and adjudication that the property taken under the claim bonds was subject to the demands of the plaintiffs in each of the several attachment suits within the terms of the conditions of those bonds, and the obligors therein were not discharged by reason of the course of proceeding by which the finding and judgment were reached and rendered,

2. The further agreement as to assessment of the value of the property stands upon the same footing. In such cases, the property consisting of a large stock of merchandise, it is impracticable, and hence not essential, to assess the value of each article separately — Code, § 3007. And the agreement between the claimant and the plaintiffs in each of the attachments that the value of the property at the time of the trial, for that is the effect of it, should be assessed at the sum shown by the inventory taken some time before, and for which sum it had in the meantime been sold by the claimant, was such agreement as the claimant liacl a right to make, and the execution of it — the assessment of value according to its terms — did not release the sureties ; nor do these facts at all militate against the conclusion we have reached that the property was found subject to each and all the attachments within the' terms and contemplation of the condition upon which the bonds were executed. The agreement wás not collusive or otherwise fraudulent. It was such agreement as is usual and customary in proceedings of this sort under like circumstances. The claimant had a right to make it, and neither the fact of its being entered into nor of its effectuation can avail these complainants.

3. There is nothing in the position advanced by the sureties that the form of the judgments in the claim suits absolves them from responsibility on the several bonds. It is true the undertaking in each of the bonds is to “have the property forthcoming for the satisfaction of the judgment if it be found liable therefor, ” meaning the judgment for plaintiffs in attachment, and the condemnation is to liability to the ‘ ‘plaintiffs’ attachment” ; but judgment not having been rendered in the attachment suits, it was, we think, proper and sufficient to find and adjudge that the property was liable to the attachment. From this necessarily followed the subjection of the property to the judgment in attachment if and when it should be rendered. — Townsend v. Brooks, 76 Ala. 308.

4. The several attachments against Mullane were levied at different times on said stock of goods, the whole of which was taken into the sheriff’s possession under the first writ levied, and each successive levy was expressly made subject to all the attachments which had been previously levied. The aggregate of debts of the several attaching creditors of Mullane as reduced to judgments was largely in excess of the value of the property as assessessed in the claim suits, but, notwithstanding this fact, on the failure of the claimant to return the property to the sheriff and the endorsement of that fact on the several claim bonds, executions issued thereon severally against the sureties for the full amount of the judgment against Mullane in each case, thus aggregating largely more than the value of the. property for the return of which the bonds had been given. That these complainants have a standing in a court of chancery for relief against this manifest injustice has been expressly decided by this court, and on the facts averred in it, and which we have summarized here, the present bill contains equity to that end. — Maas & Block v. Long, 70 Ala. 237, 243.

5. Seeking this relief the complainants must do equity, and the final decree below should enforce the payment by them of the value of the property found in the claim suits, less such reasonable and necessary expenses incurred and paid by the claimant in selling the property as the sheriff would have incurred and paid had the claims not been interposed, and less also, of course, the. amounts that have been paid by Myers to the sheriff and to attaching creditors entitled thereto.

6. The sum paid by Myers to Mullane under the latter’s claim of exemption can not be taken into account. It was adjudged in the claim suits that Myers had no title to the goods, and those judgments, standing unreversed — affirmed in fact — by this court, forever foreclose that inquiry and settle the invalidity of his claim, and this though it was subsequently held by this court in a collateral proceeding that both the lower court and this erred in the rendition and affirmance, respectively, of said judgments. — Myers v. Conway, 90 Ala. 109; Frank v. Myers, 97 Ala. 437. So that Myers must now be considered the merest stranger wrongfully intermeddling with property which the attaching creditors had a right to subject to .their demands and by such intermeddling to have allowed Mullane to take a thousand dollars of the proceeds thereof under color of his right of exemption, when the property was under rightful attachment without any claim of exemption being made to the proper person — the sheriff— and, of consequence, without any opportunity being afforded the plaintiffs in the attachments to contest such claim. The sum thus paid by Myers to Mullane must now be paid by the complainants to the attaching creditors according to their priorities. Payments made by Myers to the plaintiffs in the two attachments first levied on the property, J. A. Mullane and Callaghan, should be credited in favor of the complainants in stating the account against them. The insistence of appellees that the alleged debts of these creditors were simulated and that their attachments were collusive and fraudulent is not sustained by the record before us.

Reversed and remanded.