10 S.W. 884 (Mo. 1889), First Nat. Bank of Clinton v. Brenneisen

Citation:10 S.W. 884, 97 Mo. 145
Opinion Judge:Brace, J.
Party Name:First National Bank of Clinton, Appellant, v. Brenneisen
Attorney:W. S. Shirk and R. E. Lewis for appellant. A. Haynie and S. E. Price for attaching creditors of respondent.
Case Date:February 18, 1889
Court:Supreme Court of Missouri
 
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Page 884

10 S.W. 884 (Mo. 1889)

97 Mo. 145

First National Bank of Clinton, Appellant,

v.

Brenneisen

Supreme Court of Missouri

February 18, 1889

Appeal from Henry Circuit Court. -- Hon. J. B. Gantt, Judge.

Affirmed.

W. S. Shirk and R. E. Lewis for appellant.

(1) Section 447, Revised Statutes, 1879, did not authorize the circuit court to fix the rights and priorities of the different attaching creditors of Brenneisen, and of the partnership firm of Brenneisen & Goff. The defendants were not the same. Yet the court below undertook to enlarge its powers under said section and settle the conflicting rights of different creditors against different defendants, viz., Brenneisen individually, and the firm of Brenneisen & Goff. This it could not do. Swallow v. Duncan, 18 Mo.App. 623. (2) The firm of Brenneisen & Goff had been dissolved for about ten days when appellant's attachment was levied. Brenneisen retained his old stock in the Clinton store. It was his individual property at the time the appellant's attachment was levied. Story on Part. secs. 358, 359; City v. Wiley, 35 Iowa 330; Giddings v. Palmer, 107 Mass. 269; Parsons on Part. 346, note g. (3) But even if the property attached might be called partnership property, the court in this proceeding had no authority to apply the doctrine that firm property must first be applied to firm debts. That doctrine is only a principle of administration, adopted by courts where from any cause they are called upon to wind up the firm business. A firm creditor as such has no prior lien on the partnership assets. State v. Thomas, 7 M. A. 205; Schmidlapp v. Currie, 55 Miss. 597; Level v. Farris, 24 Mo.App. 445; Schackelford v. Clark, 78 Mo. 491; Sparham v. Hubbal, 10 Metc. 309. (4) Appellant attached substantially the same goods which furnished the basis of Brenneisen's credit with the bank. As a matter of naked right as well as law, it was entitled to satisfaction of its debt out of the proceeds of these goods. State ex rel. v. Thomas, 7 Mo.App. 205.

A. Haynie and S. E. Price for attaching creditors of respondent.

(1) Section 447, Revised Statutes, 1879, authorized the circuit court to fix the priorities of the different attaching creditors of the firm and the individual members of the firm. Said section gives the court an equitable jurisdiction to settle and dete rmine all controversies which may arise between any of the plaintiffs in relation...

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