47 N.W. 107 (Mich. 1890), Heineman v. Solomon

Citation:47 N.W. 107, 83 Mich. 153
Opinion Judge:CAHILL, J.
Party Name:HEINEMAN et al. v. SOLOMON et al.
Attorney:[83 Mich. 154] Dickinson, Thurber & Stevenson, for appellants. Julian G. Dickinson, for appellees.
Judge Panel:LONG, J., did not sit. The other justices concurred.
Case Date:November 14, 1890
Court:Supreme Court of Michigan
 
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47 N.W. 107 (Mich. 1890)

83 Mich. 153

HEINEMAN et al.

v.

SOLOMON et al.

Supreme Court of Michigan

November 14, 1890

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

[83 Mich. 154] Dickinson, Thurber & Stevenson, for appellants.

Julian G. Dickinson, for appellees.

CAHILL, J.

The plaintiffs, having recovered a judgment against Rachael Solomon, the principal defendant, commenced this suit in garnishment against the defendants, on October 11, 1889. The facts necessary to an understanding of the case are as follows: Rachael Solomon was engaged in the mercantile business, having stores at Escanaba, Gladstone, and Au Sable, in this state. She purchased, in the summer and fall of 1888, on credit, goods amounting to $50,000, and upwards, which were shipped to her various stores. The store at Au Sable was managed by her husband, Selig Solomon. In November, 1888, Selig Solomon went to Detroit, and had an interview with Schloss Bros. & Co., the garnishee defendants, the result of which was that a chattel mortgage was prepared which, on its face, undertook to secure the payment of $8,000 of indebtedness to Seligman and Emanuel Schloss, and $5,825.17 to Schloss Bros. & Co. This mortgage was afterwards sent to Au Sable, and was signed by Mrs. Solomon, and filed on the evening of November 13th, in the town clerk's office at Au Sable. Subsequently, Schloss Bros. & Co. foreclosed their chattel mortgage, and, under their foreclosure proceedings, seized all the merchandise of

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Rachael Solomon at Gladstone and Escanaba, and sold all the goods that they found pursuant to the power of sale in the chattel mortgage. This writ of garnishment issued October 11, 1889. The disclosure of the garnishees, filed November 5, 1889, showed that they had not jointly and severally any property, money, etc., in their possession, custody, or control, [83 Mich. 155] belonging to the said Rachael Solomon, and stated that another writ of garnishment was pending between the same parties, issued in said cause on the 7th day of February, A. D. 1889. This latter fact is not important, as no point is made upon it by either party. An examination of the garnishees before a commissioner was required and submitted to, and demand was made by plaintiffs for statutory issue and trial by jury. The trial occurred at the last January term of the court below. Upon the trial, the plaintiffs introduced evidence tending to show that the chattel mortgage executed by Rachael Solomon to the garnishee defendants was fraudulent, and was intended to hinder, delay, and defraud the creditors of Rachael Solomon. That the garnishee defendants had taken the property covered by the chattel mortgage, to the value of several thousand dollars, into their possession, and had sold the same, and had received the proceeds of such sales in money, amounting to upwards of $8,000, and the plaintiffs claimed the right in this suit to recover the money so in the hands of the garnishee defendants, as money had and received by them for the plaintiff's use. When the plaintiffs had rested their case counsel for garnishees moved the court to direct a verdict for the defendants, on the ground that when the garnishment...

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