Cook v. New York Condensed Milk Co.

STONE, C. J. Since the decision in M. & F. Railway Co. v. McKenzie, 85 Ala. 546, the statute under which that proceeding was instituted—Code of 1886, § 3546—has been amended. Sess. Acts 1888-9, p. 96. As the law now stands, “Any number of judgment creditors, upon whose judgments executions have been issued and returned ‘no property found,’ or creditors without liens or judgments, may join as complainants in such bill.” That amendment authorized the joining as co-complainants in the present suit of the several complainants who did unite in bringing it, although their several claims are charged to be due and owing separately to the persons and partnerships who are made complainants. The case comes before us on demurrer to the bill, which the chancellor overruled. The precise question raised is, that the statute under which this bill is sought to be maintained, is violative of Article I, section 12 of our State constitution, which declares, “That the right of trial by jury shall remain inviolate.” The contention is, that inasmuch as no provision is made in the statute for a jury trial to as-, certain and determine the amounts due the several complainants, the statute is unconstitutional. This precise question has been argued before us many times, and ably, and we gave it thorough consideration. We were aware that other courts, on a statute not distinguishable in principle from ours, had sustained the constitutional objection, and had ruled that in such conditions a jury trial must be provided for. Following many older rulings of this court, on a statute presenting a similar question, we sustained the constitutionality of the statute.—Montgomery & Florida Railway Co. v. McKenzie, 85 Ala. 546; Smith v. Cockrell, 66 Ala. 64. The.decision then pronounced, though several times assailed, has never been departed from, but has been uniformly fol-. 582 lowed in onr later rulings.—Lawson v. Warren, 89 Ala. 584; Tower Manufact’g Co. v. Thompson, 90 Ala. 129; McCullough v. Jones, 91 Ala. 186; Williams v. Stoutz, 92 Ala. 516; So. Railway & Construction Co. v. McKenzie, 96 Ala. 465. We adhere to our former rulings. Affirmed.