Seals Piano & Organ Co. v. Bell

MAYFIELD, J. On rehearing the majority of the court have reached the conclusion that we were wrong in holding that the trial court committed no error in its findings on the plea in abatement of the writ of attachment. The plea merely denied the existence of the ground of attachment alleged in the affidavit. Issue was joined, and trial was had by the court without a jury, the court finding the issue in favor of the plaintiff and overruling the plea. In this ruling we now hold the trial court erred; the plea should have been held good and the writ of attachment quashed; and such judgment will be here entered as the trial court should have entered. [291] (1) We are led to this conclusion for the following reasons: The sole ground alleged in the affidavit which authorized the issuance of the attachment was the first ground mentioned in section 4748 of the Code, as for rent not due, which reads as follows: “When the defendant has fraudulently disposed of his goods or is about fraudulently to dispose of his goods.” The plea put in issue the facts alleged. This ground of attachment is similar to, and in legal effect the same as, grounds 6 and 7 under section 2925 of the Code, relating to attachments by general creditors. The language of this last statute has been construed by this, court to mean actual fraud, as distinguished from constructive fraud. It was ruled by this court in the case of Durr v. Jackson, 59 Ala. 207, that fraudulently withholding property, as used in the attachment statute, must involve “actual fraud and evil intent to defraud creditors.” Our statutes have been frequently readopted with this construction placed on them; and.we see no reason why similar language in a statute giving the' landlord a lien and providing for its enforcement by attachment should receive a different construction so far as the statutory grounds for issuing are concerned. This seems to be also the construction placed on similarly worded statutes by English and American authorities. The rule is thus stated in Ruling Case Law, vol. 2, § 27, p. 821: “A decided preponderance of authority supports the rule that a mere constructive fraud — that is, an act involving no positive wrong, the invalidity of which arises entirely from the provisions of law — will not warrant an attachment upon the ground of fraud.” (2) We find no evidence in this record sufficient to show “fraud” in the disposition of the defendant’s goods, in the sense in which the term is defined above, by our court and other courts, when referring to grounds for an attachment. The most that is shown is a removal of the goods without the knowledge or consent of the landlord, in a way that might impair or destroy the lien given by the statute. This alone, we now hold, is not sufficient to show “actual fraud” or “intent to defraud” the creditor, and to authorize the issuance of the attachment. It is shown that the debtor or tenant is perfectly solvent; and no act is shown, other than the removal of the goods from Montgomery, Ala., to Birmingham, Ala., and there mingling the same with others upon which this landlord has no lien. The mere removal [292] of the goods from the rented storehouse or premises, without more, is not a ground for attachment as for rent not due, and is not the equivalent of a fraudulent disposition of the goods, for the reason that section 4739 of the Code, relating to landlords of agricultural lands, makes a removal of the goods from the rented premises a ground for attachment, while the section under consideration, relating to landlords of storehouses, dwellings, etc., contains no such provision. These statutes should be construed in pari materia, and this difference in the two statutes is perfectly apparent from a reading of the two together. To construe section 4748 as authorizing the issuance of the attachment for a mere removal of the goods from the rented premises is to read into it provisions which the Legislature omitted from it, and which they inserted in section 4739. (3) Of course, if the removal of the goods from the premises should be under such conditions and attended with such circumstances, as secreting, hiding, etc., as would show intent to deprive the creditor of his debt and lien, then this would authorize the inference of actual intent -to defraud the creditor, and might therefore warrant'the issuance of the attachment. But no such facts are shown by this record, and therefore we are not warranted in inferring such fraud as is meant by the statute. It therefore follows that the finding by the court to the effect that grounds for attachment existed and that the writ properly issued was error; and a judgment will be here entered quashing the writ of attachment, because wrongfully issued. The judgment against the defendant for the rent due as claimed in the complaint, however, is not reversed or disturbed, but is held to be proper and valid. In fact, there is no assignment of error as to the main judgment, and no insistence that it was erroneous or improper; and it is therefore affirmed. This judgment would have been proper and without error, if the trial court had found in favor of the defendant on the plea in abatement, as we hold it should have done. Let the judgment of this court be entered in accordance with this opinion. Affirmed in part, and in part reversed and rendered. Anderson, C. J., and McCljellan, Sayre, Somerville, and Thomas, JJ., concur. Gardner, J., dissents.