Jordan v. Rice , 151 Ala. 523 ( 1907 )

DOWDELL, J.-

This is a trial of the right of property under the statute. The issues were made up under the direction of the court. There were three separate and distinct claimants to the fund in question, each claiming a one-third interest in the same. A verdict and judgment was rendered in favor of the claimants.

Two of the claimants, John A. Lusk and McCord & McCord, the latter a firm or partnership composed of E. O. McCord and Leon McCord, asserted claim each to a third of the fund in question as and for attorney’s fees for services rendered as such to the principal debtor in the case. It Avas shown in evidence that the claimant John A. Lusk and the claimant McCord & McCord each had a contract with the defendant debtor, Moore, for one-third of the recovery of the judgment for the said Moore against the railroad company, Avdtich said judgment Avas for the fund here in question. Under this eAddence, charge 1, requested by the plaintiff, Avas properly refused.

The claim of the claimant Rice was based upon an alleged transfer by the defendant debtor, Moore, to the said Rice. It was a disputed question as to whether the transfer to Rice was prior in point of time to the service of the writ of garnishment on the garnishee railroad company. There was evidence tending to show that the garnishment was served on the garnishee railroad company in about 10 minutes after the return of the verdict of the jury in favor of Moore against said railroad company. There was evidence on the part of claimant Rice that the transfer to him by the said Moore was made within a short time after the return of said verdict. Under this evidence, priority was a question of fact for the determination of the jury. The judgment on the verdict bore date of October 8, 1903. The affidavit and writ of garnishment bore date of October 9,1903. Under this state of the evidence it was permissible for the plaintiff to show by the clerk of the court that the trial of the case of Moore against the railroad company, in which the judgment was recovered, was commenced on the 8th of October and concluded on the following day, the 9th, when the verdict was rendered, and that it was his custom always in writing up the judgments of the court, when a trial consumed more than one daw, to date the judgment of the day of commencement of the trial. — German Bank v. Campbell, 99 Ala. 249, 12 South. 436, 42 Am. St. Rep. 55; Miller v. Hampton, 37 Ala. 342; Robbins v. Webb, 68 Ala. 393.

There was evidence tending to show that Moore was indebted and had no property with which to pay his debts, or subject to the payment of debts, other tlian the judgment in question against the railroad company. If the claimant Rice, before parting with any consideration for the alleged transfer by Moore to him of a third interest in said judgment, had notice or knowledge of Moore’s indebtedness to the plaintiffs and of Moore’s insolvent condition, then, in such event, the transfer to Bice would be fraudulent and void as to the plaintiff creditor.

For the errors pointed out, the judgment must be re-, versed as to the claimant- Bice, and affirmed as to claimants John A. Lusk and McCord & McCord.

Beversed in part, and remanded. Affirmed in part.

Tyson, C. J., and Anderson and McClellan, JJ., concur.