McKissack v. Voorhees, Miller & Co.

COLEMAN, J. The appellees, as creditors of the appellant, filed their bill under section 819 of the Code of 1896 for the discovery of assets, subject to the payment of their demands. The respondent answered the bill, in which he denied that he had or owned or claimed any interest, legal or equitable, in any property, money or dioses in action, legal or equitable. After answer filed, upon the application of complainants, as provided in section 822 of the Code of 1896, the chancellor ordered an examination of the debtor before the register, which order the respondent complied with. The cause was submitted upon the testimony for decree. The court adjudged and decreed that the complainants were entitled to relief, and that respondent had in his possession or under his control the sum of fourteen thousand seven hundred and fifty-eight dollars which he fraudulently concealed and withheld from'his creditors, and it was ordered and decreed that he pay or deliver the same to the receiver, who had been appointed by the court, [104] for tlie purpose of having the same applied to complainants’ demands. The respondent having failed to pay over or deliver to the receiver on his demand/ the money or assets as ordered by the court, upon application of the complainants, the court issued a rule nisi, which was-duly served, to respondent, to' appear on a day named' and show cause why he should not be adjudged guilty of' contempt of court for refusing to pay or deliver to the'receiver the said sum of $14,758.' The present appeal is prosecuted both from'the de- - cree, adjudging that'respondent fraudulently withheld $14,758 from his creditors and the order to pay it oyer to the receiver, and also the order granting the rule nisi. An order granting- a rule nisi is not such a final decree as will support an appeal, under the'statute providing for appeals from final decrees, and there is no statute authorizing appeals from such orders. No question has been raised in this court as to the sufficiency of the decree adjudging that- respondent fraudulently witholds $14,758 from his creditors, which-he is ordered to pay over to the receiver. We deem it proper to consider the decree and order in some of their features. Although the bill is filed by complainants on behalf of themselves and other creditors who may come in and make themselves parties complainants, the aggregate amount of the claims of creditors who are seeking relief, according to the averments of the bill, will not exceed twenty-five hundred dollars. Full satisfaction of their claims is all the relief they are entitled to. There has been no judicial ascertainment and decree therefor of the sums due complainants or either of them, and the amounts averred by the bill to be owing are not admitted by the answer to be correct. The objections to the framing of the bill are not well taken. It seems to have been prepared with care, and is not open to any of the objections raised against its form, or the sufficiency 'of its averments. ■ The law requires that bills for discovery shall be sworn to. — Sweetzer v. Buchanan, 94 Ala. 574 \Lawson v. Warren,- 89 Alá. 584. The affidavit as amended is wholly insufficient. The deficiency was pointed out in the cases of Burgess v. Martin, 111 Ala. 656, and authorities cited! It is unnecessary to add anything to what has been [105] said on this question. This objection was "well taken and should have been sustained. For this .error the case must be reversed. We will not undertake to examine in full the evidence, but deem it not out of place to call attention to some principles which may apply. The evidence upon which the decree and orders of the court were based consists almost entirely of the testimony of the respondent given on his examination before the register. Unless the defendant had the money in possession or under his control at the time of the order, or had such possession and control of it after the commencement of the suit- and had disposed of it, in anticipation of the decree and order and to avoid its mandate, he would not be guilty of contempt for failing to obey the order to pay the money over to the receiver. It is not sufficient that the defendant fraudulently disposed of his property to defraud his creditors, or wasted his assets, or spent them in “riotous living,” to justify his imprisonment. There must exist the ability to obey the order, or the evidence must show some disposition of the property in anticipation of and to avoid the order of the court.— Adair Bros. v. Gilmore, 106 Ala. 436; Carr v. The State, 106 Ala. 35. Reversed and remanded*