16 F. 812 (D.Colo. 1883), Doggett, Bassett & Hills Co. v. Herman

Citation:16 F. 812
Party Name:THE DOGGETT, BASSETT & HILLS CO. v. HERMAN and another. [1] SWEET and others v. SAME. CLARK and another v. SAME. FIELD and others v. SAME. KENDALL and another v. SAME. WEIL and others v. SAME. THE GAUSS-HUNICKE HAT CO. v. SAME. (WILLIAM BABCOCK intervenor in each of the foregoing cases.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 812

16 F. 812 (D.Colo. 1883)

THE DOGGETT, BASSETT & HILLS CO.

v.

HERMAN and another. 1

SWEET and others

v.

SAME.

CLARK and another

v.

SAME.

FIELD and others

v.

SAME.

KENDALL and another

v.

SAME.

WEIL and others

v.

SAME.

THE GAUSS-HUNICKE HAT CO.

v.

SAME.

(WILLIAM BABCOCK intervenor in each of the foregoing cases.

United States Circuit Court, D. Colorado.

1883

Prior to the fourteenth of October, 1882, the defendants, Max Herman and Solomon Herman, composing the firm of Herman Bros., were merchants doing business at Leadville and at Boulder, in this

Page 813

state and also having a branch store at Loveland. They had a stock of goods at Leadville valued at about $20,000, one at Boulder valued at about the same, and one at Loveland valued at about $3,000. They were, on the said fourteenth day of October, and had been for some time previously, insolvent, owing debts amounting to about $100,000, the greater part of which had been contracted within the 90 days preceding, and were indebted, among others, to the plaintiffs in these suits. On the fourteenth day of October they made a transfer of their entire stock of goods at Leadville to the First National Bank of Leadville, one of their creditors, in payment of a debt of some $8,000. On the sixteenth day of October they conveyed the stock at Loveland to one Anderson, another creditor, in payment of another debt.

On the fifteenth day of October, the day after their transfer of the Leadville stock as above mentioned, defendants met in Denver for the purpose of considering their affairs, and at that conference the propriety of making an assignment for the benefit of creditors was discussed. On the succeeding Tuesday, October 17th, they again met in Denver, and an assignment was then and there drawn up and executed, conveying all their property to one J. H. Monheimer, as trustee or assignee for their creditors. This instrument was fully executed on the 17th, and nothing remained but the acceptance of the assignee, and the delivery to him of the property. It was expected that the assignee would signify his acceptance and take possession on the morning of the 18th, as he in fact did. On the evening of the 17th, after executing the assignment, Max Herman, one of the assignors, proceeded to Boulder and there met at the depot, upon his arrival, the intervenor, William Babcock, who was also a creditor of the firm of Herman Bros. At that meeting Herman informed Babcock that the assignment had been executed; that the assignee would probably take possession the next morning; and that whatever was done to secure Babcock must be done quickly. It was accordingly agreed that Babcock should take goods out of the store that night in payment of his debt, including certain debts of others assumed by him, making his entire claim about $2,500. During the night of the 17th the goods thus turned over to Babcock were removed from the store and deposited in a cellar rented by Babcock for the purpose. The next day the assignee took possession of the goods remaining in the store, and on the twenty-third day of October he sold the entire stock to Babcock for the sum of $13,000, which was paid, and is now in the hands of the assignee. The plaintiffs in these suits sued out

Page 814

writs of attachment on the ground that the assignment to Monheimer was fraudulent and void, and upon the writs thus obtained the marshal levied upon the goods in the hands of Babcock. The latter commenced proceedings in replevin in a state court against the marshal, and by virtue of such proceedings seized the goods, giving the usual bond for the return of the property, or its value, if a return should be awarded. Upon the trial of the replevin suit in the state court it was held that the court had no jurisdiction, because the property was, at the time of the commencement of the replevin suit,...

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