Claflin v. Sylvester

• Decision Date: 02 December 1889
• Citation: 12 S.W. 508,99 Mo. 276
• Parties: Claflin et al. v. Sylvester et al., Plaintiffs in Error
• Court: Missouri Supreme Court

12 S.W. 508

99 Mo. 276

Claflin et al. v. Sylvester et al., Plaintiffs in Error

Supreme Court of Missouri

December 2, 1889

Error to St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Affirmed.

Nathan Frank and Albert Arnstein for plaintiffs in error.

(1) The institution of the attachment suits of H. B. Claflin & Co. and Jacob Friedman & Bro., against Leubrie Bros. was fraudulent and void, there being no ground for an attachment even if the debts due them were bona fide. It was a transfer of property to defraud creditors. Henderson v Henderson, 55 Mo. 534; Johnson v. Sullivan, 23 Mo. 474. (2) The testimony shows that those suits were instituted with the preconceived design of the parties to the controversy to obtain the property attached for the use of the Leubrie Bros. Smith v. Craft, 12 F. 856. (3) The attachments were instituted as the result of collusion between the parties, friendly proceedings and not adverse or hostile and in contravention of the statute. The right acquired by attachments as against other attaching creditors depends upon compliance with the law. Drake on Attachments sec. 262, et seq. (4) The attachment proceedings were abandoned and the lien was lost by the withdrawal of the pleas in abatement, and the judgment in favor of Claflin & Co., and Friedman & Bro., stands as though no attachment had been issued. Bank v. McDonald, 46 Mo. 31; Drake on Attach., secs. 262, 282; Lowin v. McGee, 75 Ind. 508; Smith v. Scott, 86 Ind. 346. (5) The attachments being prompted by the debtors when they were insolvent, and after they had contemplated making an assignment for the benefit of their creditors under the statute concerning voluntary assignments, became a part of the same act, and the sheriff became co-trustee with the assignee for the distribution of the property pro rata, and the court having jurisdiction of the assignment would have made a proper order touching the matter. Preston v. Spaulding, 120 Ill. 208, and cases cited; Sexton v. Anderson, 95 Mo. 373, 382.

H. D. Laughlin for defendants in error.

The careful and elaborate opinion of Judge Lubke, as announced upon the decision of the cause in the lower court, is a complete answer to the brief of plaintiffs in error.

Brace J. Ray, C. J., and Barclay, J., absent.

OPINION

Brace, J.

-- This is a proceeding under the provisions of section 447, Revised Statutes, 1879, whereby Sylvester, Hilton & Co. and thirty-two other subsequent attaching creditors of Leubrie Bros. seek, by motion, to set aside or postpone the lien of two prior attachments, one in favor of H. B. Claflin & Co. for $ 39,698.80, and one in favor of Jacob Friedman & Co. for $ 24,549.73, on the ground: --

"1. That the debts sued for by Claflin & Co. and Friedman & Co. were, and are not, bona fide debts due and owing by the Leubrie Bros.

"2. That the attachments thereon were levied collusively for the purpose of giving the Leubrie Bros. the control of the property taken thereunder.

"3. That said attachments were not sued out adversely in good faith, but in furtherance of a conspiracy between the Leubries and plaintiffs for the purpose of preventing the bona fide creditors of the Leubrie Bros., including these movers, from collecting their just demands."

On the nineteenth of December, 1884, Claflin & Co. and Friedman & Co., defendants in error, sued out their said attachments and caused the same to be levied on the stock in trade of the Leubrie Bros. Later, on the same day, Leubrie & Bro. made a voluntary assignment for the benefit of all their creditors. After such assignment was made, plaintiffs in error being thirty-three other creditors of the Leubrie Bros. sued out attachments against them and caused the same to be levied upon the same property taken under the prior writs of defendants in error. Thereafter, a sale of the property was had by the sheriff and sufficient of the proceeds thereof to satisfy the claims under the two prior attachments of defendants in error are in the hands of the sheriff. Upon the return day of the writ in each of these two cases, Leubrie & Bro., the defendants therein, filed pleas in abatement, verified by affidavit. Afterward, these pleas were withdrawn, the attachments were sustained and thereupon defendants in error, plaintiffs therein, took judgment, each for the amount hereinbefore stated, for which amount and costs each were awarded execution to be satisfied out of the property attached and sold by the sheriff. The application of the money to the payment of these judgments was stayed in the trial court to await the decision of this joint motion filed in each case by plaintiffs in error, the later attaching creditors. On the hearing of the motions, they were overruled, the order staying the payment of the fund in the sheriff's hands upon the execution in favor of defendants in error was vacated at the cost of the movers, and they sued out this writ of error.

I. While this proceeding may be considered, in its nature, one of equitable cognizance, and we might not feel concluded by the findings of the trial court upon the facts, yet, in the absence of any abstract of the evidence, such as our rules require, and which the plaintiffs in error in this case have not seen proper to furnish, the presumption will be indulged that those findings are supported by the evidence. Craig v. Scudder, 98 Mo. 664, 12 S.W. 341; Jayne v. Wine, 98 Mo. 404, 11 S.W. 969.

The issues and the probative force of the evidence given are so clearly stated, and three of the five points in the brief of counsel for plaintiffs in error for reversal, made on the evidence, are so satisfactorily disposed of by the learned judge, who tried the case, in his able opinion which we find in this record, that, as to them, we are content to simply quote the following passages from that opinion: "To authorize the sustaining of these motions, the evidence must be sufficient to warrant a finding that these attachments were in fact fraudulent, either because the debts sued for therein were not bona fide debts, or that the attachments were suffered or procured to be made for the use and benefit of the defendants, or that they were contrived between the parties with the intent to hinder, defraud or delay the other creditors of the debtors. Now, as to the first of these elements, all the evidence disproves any assertion that the debts sued for and claimed by Claflin & Co. and Friedman & Co. were not actual bona fide debts of Leubrie Bros. This was virtually...