10 S.W. 140 (Mo. 1888), Humphreys v. Atlantic Milling Co.

Citation:10 S.W. 140, 98 Mo. 542
Opinion Judge:Black, J.
Party Name:Humphreys v. The Atlantic Milling Company et al., Appellants
Attorney:Hough & Overall and C. M. Napton for appellants. Dyer, Lee & Ellis and John G. Chandler for respondent.
Judge Panel:Black, J. Ray, J., absent.
Case Date:December 20, 1888
Court:Supreme Court of Missouri
 
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Page 140

10 S.W. 140 (Mo. 1888)

98 Mo. 542

Humphreys

v.

The Atlantic Milling Company et al., Appellants

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke, Judge.

Reversed and remanded.

Hough & Overall and C. M. Napton for appellants.

(1) It appears from the undisputed testimony that the share of the Atlantic Milling Company, in the acceptance, was represented by the note of the Victoria Flour Mill Company, whose solvency is not questioned, payable to Bain (the president of the Atlantic Milling Company), by whom the draft had to be drawn, as shown, and by him, Bain, immediately appropriated to the payment of the creditors to whom it had been promised, and who had given the company indulgence on the faith of such promise, by delivery of the note with such instructions to defendant Judson, whose solvency, and whose good faith in the transaction are unquestioned, and the note was in the latter's hands when the injunction was served upon him. Plaintiff wholly failed to prove his case. (2) Plaintiff has no right to an injunction and no standing in a court of equity, and, if he had a right to attach at all, had a complete and adequate remedy by statutory process of attachment and garnishment. It is clear that if the transfer to Judson was inoperative, then he held the note for the Atlantic Milling Company. It is idle to pretend that because the note was payable to Bain (the president of the company) individually, that the creditors of the company could not have reached it by garnishment. Nor would the fact that the note was payable, subject to the payment of the acceptance, relieve the partners from liability to garnishment, subject of course to the conditions under which it was payable. The decisions of our courts are clear and express upon this point. Lee v. Tabor, 8 Mo. 322; Eyerman v. Krieckhaus, 7 Mo.App. 456; Weil v. Posten, 77 Mo. 284. That the validity of the transfer to Judson could be fully determined in garnishment proceedings is clear

Dyer, Lee & Ellis and John G. Chandler for respondent.

(1) The objection that the claim of respondent had not been reduced to judgment before the commencement of this suit is without merit. It was admitted that his claim was justly due and it is immaterial whether he reduced it to judgment or not. Nieters v. Brockman, 11 Mo.App. 600; Pendleton v. Perkins, 49 Mo. 565; Luthy v. Woods, 1 Mo.App. 167; Russell v. Clark, 7 Cranch, 89; Kent v. Curtis, 4 Mo.App. 130; Miller v. Davidson, 3 Gilm. 523. (2) There was no remedy at law by which plaintiff could have reached the interest of the Atlantic Milling Company in the draft or acceptance of the White Line Central Transit Company because it embraced the undivided interests of the Atlantic Milling Company and the Victoria Milling Company. That part of the fund belonging to the Atlantic Milling Company could not have been reached by garnishment. If the debt or fund sought to be garnished belongs to the defendant, and another person, the garnishment will not lie. Kingsley v. Fire Co., 14 Mo. 465. And if the fund sought to be reached by garnishment could only be recovered by the defendant by a proceeding in equity, garnishment will not be maintainable. A creditor cannot bring the trustee into a court of law to answer in a case where equity has original and sole jurisdiction. Lackland v. Garesche, 53 Mo. 257; Sheedy v. Bank, 62 Mo. 17. (3) The proof in this case shows, beyond any reasonable doubt, the fraudulent purpose on the part of the Atlantic Milling Company, through its president, George Bain, to hinder, delay and defraud the creditors of that company. If the intent of the debtor, by the disposition of his property, is to hinder, delay or defraud creditors of their lawful actions, damages, debts or demands, then such transfer is clearly utterly void. Rupe v. Alkire, 77 Mo. 641, and cas. cit. If the conveyance is contrived and made with a view to defeat particular creditors, it is fraudulent as to them. Henderson v. Henderson, 55 Mo. 534. (4) The defendants did not plead a remedy at law. Blair v. Railroad, 89 Mo. 393.

Black, J. Ray, J., absent.

OPINION

Page 141

[98 Mo. 546] Black, J.

This and four other suits of a like character were tried at the same time. The suit is one in equity, and the defendants are the Atlantic Milling Company, Geo. Bain, who is president and...

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