Drennen v. Alabama National Bank

COLEMAN, J. The bill was filed by appellee, a judgment creditor of appellant, under sections 3544-3547 of the Code of 1886, (Code of 1896, §§ 818-821). The appeal is prosecuted from the decree of the court overruling respondent’s demurrer, to the bill. After averring that complainant was the assignee of the judgment, the issue of execution and return of ‘ ‘no property found, ’ ’ it charges that “said Charles Drennen has no visible means subject to legal process, of value sufficient to pay said judgment, but that said Charles Drennen has property or interest in property, real or personal, or money or effects or choses in action, subject to the payment of said judgment, but the kind and description of the property, and how held is kept concealed and hidden out, and is unknown.to orator, and that a discovery by respondent is necessary, to enable your orator to reach and subject it to the satisfaction of his said demand, ” &c. The demurrer is directed against the bill as a whole, and neither ground raises the specific question, .that, construing the pleadings most strongly against the pleader, the averment that respondent “has no visible means subject to legal process,” of value sufficient to pay said judgment, ’ ’ must be held to be an admission that he has some property subject to legal process, and which must be exhausted before the complainant can resort to a court of equity; nor does either ground raise the specific question argued in appellant’s brief, that the bill is defective in that it avers in the alternative that 322 respondent “lias property or interest in property, real or personal, or money or effects,” etc. We have held that an accurate description of the property is not required when the creditor seeks to subject to the payment of his debt, property of the debtor under the statute. We are of opinion the averments of the bill are sufficient under the provisions of the statute (Code of 1886, §§ 3545-3547 ; Code of 1896, §§ 819-821), supra, as construed by the decisions of this court. — Sweetzer v. Buchanan, 94 Ala. 574; Lawson v. Warren, 89 Ala. 584. Affirmed.