115 S.W. 467 (Mo.App. 1909), Simmons Hardware Co. v. Fighting Flames Co.
| Judge | GOODE, J. Nortoni, J., concurs; Reynolds, J., not sitting. |
| Parties | SIMMONS HARDWARE COMPANY, Respondent, v. FIGHTING THE FLAMES COMPANY, Appellant |
| Date | 12 January 1909 |
| Citation | 115 S.W. 467,135 Mo.App. 266 |
| Court | Missouri Court of Appeals |
| Docket Number | . |
Page 467
Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor, Judge.
REVERSED AND REMANDED.
STATEMENT.--In this action of attachment the instructions given and refused in the trial of the plea in abatement, were as follows:
"(1) If you believe from the evidence that at the time of the suing out of the writ of attachment herein, defendant was indebted to a large number of creditors, and was unable to pay its indebtedness, which was due and owing at that time, and if you further believe from the evidence that defendant was about to remove all of its property out of this State, and if you believe from the evidence that as the natural and probable effect of such contemplated removal, all defendant's property would have been out of this State and not subject to process of its courts at the time when defendant's creditors, would in the ordinary course of business have brought suit on their claims, and in the course of legal procedure would have obtained judgment against defendant in the courts of this State, and have been entitled to execution thereof, then your verdict must be for plaintiff.
"(2) If you believe from the evidence that at the time of the suing out of the writ of attachment herein, defendant was about to remove all of its property out of this State and use the same in an amusement tour of various States, and that the natural and probable consequence of such removal would have been to hinder or delay its creditors in the collection of their debts, then your verdict must be for plaintiff, although you may further find from the evidence that defendant intended to use said property for a short period near the commencement of said tour at various places in the State of Missouri, and in the city of St. Louis, and although you further find from the evidence that said property was actually brought back to the city of St. Louis, and sold under order of court in assignment proceedings.
"(3) You are instructed that every one is presumed to intend the natural and probable consequence of his acts, and if you believe from the evidence that at the time of suing out the writ of attachment herein, defendant was about to remove all or a large portion of its property out of this State and that the natural and probable effect of such removal would be to hinder or delay its creditors in the collection of their debts; then it is presumed that such removal was made with the intent to hinder or delay the creditors of defendant.
"(4) In order to find for plaintiff on the ground that defendant was about to remove its property out of this State, it is not necessary that you should believe that such contemplated removal was with the intent to defraud its creditors, but it is sufficient for you to believe that such contemplated removal was with the intent to hinder or delay creditors of defendant in the collection of their debts.
The following instruction was given for defendant:
"(5) The jury are instructed that the only question for them to determine on this trial is whether or not, on May 3, 1906, when the attachment issued, the defendant was about to remove its property or effects out of this State with the intent to hinder or delay its creditors.
"The burden of proof is upon the plaintiff to show by the greater weight of evidence, not only that defendant was about to remove his property, or effects out of this State, but plaintiff must go further and show that such removal was to be made with the intention on the part of the defendant, by such removal, to hinder or delay its creditors, and if you find that such wrongful intention is not proved by the greater weight of evidence, then your verdict should be for defendant."
You are further instructed that there is no evidence of fraud in the case.
The two following instructions asked by defendant were refused:
"(1) Defendant asks the court to declare as matter of law that upon all the evidence in this case, the first ground of attachment cannot be sustained, and the jury will find for defendant on the plea in abatement.
"(2) Defendant asks the court to instruct the jury that if it finds from the evidence, that the defendant was the owner of a traveling show, and that it removed its property from this city on May 4, 1906, for the sole purpose of giving exhibitions at various places in this State and other States, and that it then intended to return and did return to this State on or about June 10, 1906, and that its officers and managers, when it so left this State, made no concealment of their purpose and had no fraudulent intention by such removal to hinder or delay its creditors, then the plaintiff cannot maintain its attachment in this case, and your verdict should be for the defendant on the issues raised by the plea in abatement, even though you may further find that defendant took away from this State all of its property temporarily, including its business office and books of account."
Reversed and remanded.
(1) To establish the fifth statutory ground for attachment, the plaintiff is required to allege and prove: (a) A purpose on the part of the debtor to remove his property out of the State. (b) An intent by such removal to defraud, hinder or delay his creditors. The element of wrongful intent to defraud, hinder or delay is material to constitute the fifth ground. Reed v. Pelletier, 28 Mo. 173; Douglass v. Cissna, 17 Mo.App. 44. (2) The second instruction offered by defendant and refused, states the law of this case, and should have been given. No law forbids a debtor removing his property temporarily from State to State for business purposes. The removal is lawful unless the intent to hinder or delay creditors is alleged and proved. Steele v. Dodd, 14 Neb. 496; Hunter v. Soward, 15 Neb. 215; Dunn v. Claunch, 13 Okla. 577; Warder v. Thrilkeld, 52 Iowa 134; Bernhard v. Cohen, 56 N.Y.S. 271; Mott v. Lawrence, 17 How. Pr. 559. (3) The attachment law should not be construed to hamper legitimate trade or business. This show was designed to travel from State to State, and its business was lawful. Courts of high...
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