Putney & Co. v. Wolberg

HARALSON, J. An' attachment was sued out by Robert Wolberg, one of the. defendants below, against "Esther Meyrovitz, which was levied on a stock of goods belonging to her. The bill assails this attachment on account of fraud, alleging that the debt or demand upon which the attachment is based is simulated in whole or in part, and that the attachment was sued out in pursuance of a [126] prior understanding between said Wolberg and the said Meyrovitz, for the purpose of enabling said Wolberg to hcquire a prior lien over the other creditors of said Meyrovitz; and that the issuance and levy of said attachment was in pursuance of collusion between said parties, to hinder, delay and defraud the creditors of said Meyrovitz, including the complainants. . If either of these specifications of fraud are 'shown to be true, the attachment, as has been repeatedly held, is void. — Cartwright v. Bamberger, 90 Ala. 405; Comer v. Heidelbach, 109 Ala. 220; Gassenheimer v. Kellogg, 121 Ala. 109. The answers of the defendants specifically deny these averments of the bill. The evidence shows the amount and maturity of the claim of defendant, Wolberg; that it was justly owing, and not simulated, or in anywise fictitious; and that there was no agreement, understanding or collusion whatever, between him. and defendant in attachment touching the suing out of the writ. The evidence of the defendants, on these points, is full and clear in behalf of defendant, Wolberg, while that of complainants, when accorded its fullest significance, tends only to .raise suspicions of the fairness and legality of the atfaclmient. The insistence that the plaintiff in attachment had no just, statutory ground for suing out the attachment is unavailing-in such a procedure. That might be true, and it would not follow, that the debt, the foundation of the writ, was simulated, nor that the process was sued out in pursuance of collusion between plaintiff and defendant, such as is charged in the bill. Without the existence of one or the other, or both of these, there can he no equity in the bill.1 Authorities supra; Builders & P. S. Co. v. First Nat. B. of Montgomery, 123 Ala. 203. We find no error in the decree of the court, and it is affirmed. Affirmed.