Adair & Co. v. Feder , 133 Ala. 620 ( 1901 )

SHARPE, J.

Creditors of J. R. Adair & Co. seek by this bill to have annulled proceedings in certain attachment suits whereunder the goods of that firm were seized and sold, and to hold the plaintiffs in those suits to account as trustees in invitum for the proceeds of the goods. The alleged ground upon which the relief is sought is that the attachments were sued out in collusion with the debtors, without the existence of any statutory ground for such process and for the purpose of hindering, delaying or defrauding the complainants and other creditors.

Only the defendant Bank of Dothan filed an answer. Decrees pro confesso were taken against the members of the firm of J. R. Adair & Co., and the remaining defendants, John Ginn and Margaret Keller, each filed a plea setting up their non-residence as a bar to the court’s jurisdiction to decree relief against them.*

The legal sufficiency of these pleas was not tested, for though a motion to strike them out was filed, that motion was not tried or submitted to be passed on, and, therefore, must be treated as abandoned. — American Mortgage Co. v. Inzer, 98 Ala. 608; Elyton Land Co. v. Morgan, 88 Ala. 434 6 Ency. Pl. & Pr., 370. The cause having been submitted for final decree on these pleas among other matters without objection urged, it is presumed that issue was taken on them.- — Tyson v. Decatur Land Co., 121 Ala. 414. Without dispute the non-residence of the two last named defendants was proven and for that, if for no other reason, they were entitled to have the bill dismissed as to them. — Tyson v. Decatur Land Co., supra; Johnson v. Common Council, 127 Ala. 244.

The evidence does not in our opinion sustain the bill’s averments of fraud. Without conflict it proves the debts on which the attachments were issued in favor of the defendants, respectively, and also circumstances tending strongly to show there was at least probable cause for their issuance. There is nothing to show that Adair & Company retained any interest in the goods or received any benefit from the transaction. If they did so and if the fact be material the burden of proving it was on the complainants. — Murray v. Heard, 103 Ala. 400.

It appears the several attachments were sued out about the same time and by the same attorneys, and that complainants’ witness Baker was one of the attaching creditors. His testimony tends to show defendant J. R. Adair assented to the suing out of his attachment, and was present at the office of those attorneys when the other attachments were being sued out and had knowledge of what was being done. Complainants’ only other witness was the notary who issued the attachments. He first testified that according to his recollection J. R. Adair was in the office of the attorneys referred to when the Avrits were issued to the constable, but on cross-examination he said he was not positive that Adair was then present, and that if he was he neither said nor did anything about the attachments.

On the other side is thf¡ testimony of the constable denying that Adair Avas present Avhen he received the writs and of the two bank officers affirming the good faith of the bank’s action and that of'Adair which, if true, is inconsistent Avith collusion as between him and any of these defendants.

If it should be assumed as proven that Adair Avas in active accord Avitli the bringing of Baker’s suit his attitude towards the suits of these defendants would still be left conjectural. Certainly Adair’s' mere knowledge of defendants’ purpose to- sue or his Avillingness to be sued, if shoAvn, Avould not of itself AArarrant the conclusion that defendants were parties to any covinous agreement or Avere acting in fraudulent concert with the defendants in attachment. — Warren v. Hunt, 114 Ala. 506.

The decree appealed from Avill be reversed, and one ■ will be here rendered dismissing the bill and directing that complainants pay the costs in the chancery court as Avell as costs of appeal.

Reversed and rendered.