Steiner & Lobman v. Parker & Co. , 108 Ala. 357 ( 1895 )

COLEMAN, J.

-The bill was evidently filed upon the theory, that attachments sued out by creditors, acting collusively with the debtor, the purpose being on the part of the debtor to prefer the attaching creditors, and on the part of attaching creditors and the debtor, to hinder, delay and defraud other creditors, the attachment having been levied upon all available assets, might be declared by a chancery court to be a general assignment within the statute, and administered for the benefit of all the creditors. The principle applicable to this theory of complainants’ bill, has been thoroughly considered by this court, in the case of Bell et al. v. Goetter et al., 106 Ala. 462, and in Rochester v. Armour, 92 Ala. 432, and the more recent case of Pollak Co. v. Muscogee Mfg. Co. present Vol post. The bill avers collusion between the attaching creditors and the debtor, that in fact no grounds existed for the suing out of the attachments, that there was an understanding that the attaching creditors would not be sued upon their-bonds, “that the debts claimed by the attaching creditors were in a large degree simulated,” and that the “design and agreement between them (the debtors) and said creditors was to hinder, delay and defraud their other creditors, including complainants.”. These averments appear in the abstract of the case, and were not demurred to because of indefiniteness.

In addition to the special relief prayed, there is a prayer for general relief. So fair as the bill charges that the attachments sued out were upon simulated debts, and were sued out by collusion with the debtor, to hinder, delay and defraud creditors, the case made by the bill, is fairly within the influence of the case of Cartwright v. Bamberger, Bloom & Co. 90 Ala. 405; Klein v. Miller, 97 Ala. 507.

There was equity in the bill in so far as it averred fraud in the issuance of the attachment, and under the prayer for general relief the complainants were entitled to relief. The demurrer to the whole bill for want of equity should have been overruled. If the demurrer for want of equity .had been directed to that phase of- the bill which sought relief upon the grounds, that the several attachments should be declared in effect a general assignment the demurrer would have been well -baleen. Some of the grounds of demurrer were well assigned, and the court did not' err in sustaining the-demurrer to' the bill. It cannot avail appellant to reverse the case, for the reason that the court erred in sustaining some of the grounds, which were not well assigned. The decree sustaining a demurrer to a bill will be affirmed if any of the grounds assigned, are well taken, and complainant must cure the defects which are subject to the demurrer, by amendment, before he can successfully appeal.

The bill was not objectionable, because of a misjoin-der of complainants, upon the ground that one of the complainants was a judgment creditor whose judgment had been recorded, and the other complainants were simply contract creditors. A court of chancery has full capacity to adjust priority of claims and liens.

In affirming the decree of the chancery court, sustaining the demurrer .to the bill, it must not be understood, that we affirm all the rulings of the court, but only so far as. to hold that the demurrer was well taken and the the bill should have been amended. Complainants are allowed thirty' days from the date of the decree of affirmance within which to amend their bill.

Affirmed.