Heineman v. Solomon

• Decision Date: 14 November 1890
• Citation: 83 Mich. 153,47 N.W. 107
• Court: Michigan Supreme Court
• Parties: HEINEMAN et al. v. SOLOMON et al.

47 N.W. 107

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.

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 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, 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 proceedings were commenced, October 11, 1889, the garnishees had not in their possession, custody, or control, any property, money, or effects of Rachael Solomon, the principal defendant; that the property which had been taken in November under the chattel mortgage was the only property in controversy; and that property had all been sold for cash, under the foreclosure of the mortgage, in November and December, 1888; and that plaintiffs could not recover in this action the value of the property sold under the chattel mortgage. The court directed the jury as requested, and upon this instruction the only question in the case arises.

It is not seriously contended but that under the statute, as it existed prior to 1889, the instruction of the circuit judge was in accordance with the rule laid down by the former decisions of this court. Fearey v. Cummings, 41 Mich. 376; ^[1] Folkerts v. Standish, 55 Mich. 463, 21 N.W. 891. But it is claimed that under Act No 244, Pub. Acts 1889, the plaintiffs had a right to recover the value of the goods that had been fraudulently received by the garnishees and converted into money. The act referred to amended sections 8059 and 8091, How. St., and, as amended, read as follows: "Sec. 8059. From the time of the service of such writ, the garnishee shall be liable to the plaintiff to the amount of property, money, goods, chattels, and effects under...