Bolckow Milling Co. v. Turner

• Decision Date: 30 June 1886
• Parties: THE BOLCKOW MILLING COMPANY, Respondent, v. TURNER, FRAZER & COMPANY ET AL., Appellants.
• Court: Kansas Court of Appeals

23 Mo.App. 103

THE BOLCKOW MILLING COMPANY, Respondent, v. TURNER, FRAZER & COMPANY ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

June 30, 1886

APPEAL from Nodaway Circuit Court, HON. HENRY S. KELLEY, Judge.

Affirmed.

Statement of case by the court.

This was a controversy between the respondent and the appellants who were all attaching creditors of Wm. Young. The controversy was submitted to the court on the following agreed statement of facts:

" Come now the parties hereunto and state to the court that on the twenty-sixth day of June, 1883, before one A. G Lucas, a justice of the peace in and for Hopkins township Nodaway county, Missouri, Turner, Frazer & Company began an attachment suit against one William Young, and in said attachment suit levied upon, on that date, one hundred and fifty half sacks of flour, as will appear upon and by the return of the officer who levied said writ of attachment.

That, on the sixth day of July, 1883, before the same justice of the peace, at one o'clock and thirty minutes, p. m. of said day, one Samuel Bliss began his suit in attachment against the said William Young, and in said attachment suit levied upon, at that time, three hundred and thirty half sacks of flour, among the property itemized, as will appear by the officer's return upon said writ of attachment.

That, on the ______ day of ______, 1883, before same justice, Henry J. Lowe began his suit in attachment against said William Young, and in said attachment levied upon three hundred and thirty half sacks of flour, among other property, as will appear by return upon said writ of attachment. That, on the twenty-eighth of June, A. D., 1883, before N.H. Herbert, justice of the peace in said township, county, and state, James Allison began his suit in attachment against said William Young, and in said attachment suit levied upon one hundred and thirty half sacks of flour, as will appear by the return of the officer who levied said writ of attachment in said suit. That all the foregoing suits in attachment have heretofore been certified by said justice of the peace, before whom same were brought to this court upon the application of the Bolckow Milling Company, under section 447, page 71, volume 1, Revised Statutes, 1879.

That, on the twenty-fifth day of June, A. D., 1883, Wm. Jackson began his suit in attachment in this court against said William Young, and in his suit levied upon one hundred and twenty-two sacks of ‘ Gem’ flour, fifty-nine sacks of " Heart's Content,' fifteen sacks of ‘ Exactly So.’ That this flour was ‘ levied upon on the twenty-fifth day of June, 1883, among other property. That on the seventh day of July, A. D. 1883, the Bolckow Milling Company began its suit in this court by attachment against said William Young, and levied its writ upon all the flour mentioned hereinbefore, which had been attached by the officers in the suits aforesaid.’ It is further stated that the suit of said Bolckow Milling Company was for the unpaid purchase money due to said Bolckow Milling Company from William Young, defendant in all of said attachments, for the purchase of the flour aforesaid.

All the attaching creditors admit that the Bolckow Milling Company attached said flour for a debt owed to said milling company for the unpaid purchase money for said flour. That none of the claims of the other attaching creditors are for unpaid purchase money. (William Jackson, said Jackson, had no knowledge of contents of contract exhibited herewith, and James Allison had notice of the fact that the flour was not paid for at the time of bringing suit).

It is further stated that the contract between the Bolckow Milling Company and William Young is same as hereto attached.

The Bolckow Milling Company claim that all said flour is subject first to its writ, owing to same being liable to pay them for their purchase money. The rest of attaching creditors claim that the flour is subject to attachments according to the date of the respective levies, and the court, upon this statement, which is agreed to by the parties, and inspection of the attachment papers is asked to settle right of parties."

(Signed by all the attaching creditors mentioned in said agreed statement.)

After the filing of the agreed statement of facts, judgment was rendered in favor of the plaintiffs and against Young in each of the attachment suits. After the rendition of such judgments, the Bolckow Milling Company filed a motion, asking the court to make an order on the sheriff to pay to it the proceeds of the sale of the flour hereinbefore mentioned, in satisfaction of its claim in perference to all other attaching creditors, under the pleadings and agreed statement of facts. The court granted the motion and judgment was accordingly entered. From said judgment the other attaching creditors have appealed to this court.

C. A. ANTHONY, R. H. WITHEY, and BEECH & ELLISON, for the appellant.

I. By the service of theis writs of attachment against Young, appellants acquired a lien on the property which no subsequent attachment could defeat. The property was then in the custody of the law, and beyond the reach of seizure by another execution or attachment. Drake on Attachments (5 Ed.) sect. 224; Patterson v. Stephenson, 77 Mo. 327; Metzner v. Graham, 57 Mo. 404.

II. Section 2353, Revised Statutes, has the effect only of preventing the judgment debtor from claiming the property, exempt from such judgment or execution, and does not in any manner affect the right or priorities of attaching creditors. The statute simply deprives the execution debtor from claiming the property when seized on execution, and nothing more. There is no lien existing in favor of the vendor. Menicke v. Bracksek, 14 Mo.App. 316.

III. Under section 2507, and the latter part of section 2505 Revised Statutes, if the milling company had sold this flour to be paid for in instalments, the creditors could hold the flour, because the sections cited had not been complied with, and that it was all sold on time could make no difference, unless the parties had effected a lien, or reserved the title to themselves in the manner pointed out. The right...