8 S.W. 173 (Mo. 1888), Hazell v. Bank of Tipton

Citation:8 S.W. 173, 95 Mo. 60
Opinion Judge:Norton, C. J.
Party Name:Hazell, Assignee, Plaintiff in Error, v. Bank of Tipton
Attorney:Cosgrove & Johnston, Moore & Williams and Smith, Silver & Brown for plaintiff in error. Draffen & Williams, G. P. B. Jackson, L. F. Wood and W. P. Johnson & Son for defendant in error.
Judge Panel:Norton, C. J. Ray J., absent.
Case Date:May 07, 1888
Court:Supreme Court of Missouri
 
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Page 173

8 S.W. 173 (Mo. 1888)

95 Mo. 60

Hazell, Assignee, Plaintiff in Error,

v.

Bank of Tipton

Supreme Court of Missouri

May 7, 1888

Error to Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

Cosgrove & Johnston, Moore & Williams and Smith, Silver & Brown for plaintiff in error.

(1) The trial court erred in permitting the bank to enquire of the witness Reeves, whether any steps were taken by the assignors, two or three days after the assignment, to compromise, with their creditors. No participation of the assignee in said compromise was shown. Crow v. Beardsley, 68 Mo. 435; Byrne v. Becker, 42 Mo. 269; State v. Benoist, 37 Mo. 500; Gates v. Lebaume, 19 Mo. 25; Harcourt v. Halcomb, 89 Ind. 104. (2) The defendant failed to make out a primafacie case, and the demurrer to the evidence should have been sustained. Morgan v. Durfee, 69 Mo. 469; Powell v. Railroad, 76 Mo. 80. Fraud is a fact and when mere circumstances are relied on to prove it, they must be such as to raise strong presumptions of its existence. Loomis v. Higgins, 5 West. Rep. 408; Wait v. Kellog, 5 West. Rep. 736. (3) The deposition of Gilbert Elliott was erroneously excluded. Petring v. Chrisler, 90 Mo. 649. The interpleader was entitled to open and close the case. Burgert v. Borchert, 59 Mo. 80; Meagher v. Biggs, 46 Mo. 65; Gray v. Parker, 38 Mo. 160; Porter v. Jones, 52 Mo. 399. (4) The fifth instruction, to the effect that there was no evidence of fraud or knowledge thereof on the part of the assignee, should have been given. Albert v. Besel, 88 Mo. 150; Renney v. Williams, 89 Mo. 139; Bump on Fraud. Con. 42. (5) The tenth, eleventh, and twelfth instructions should have been given for the interpleader. The deed of assignment was not fraudulent, merely because it had the effect of hindering and delaying creditors in collecting their debts. Albert v. Besel, 88 Mo. 150; State ex rel. v. Benoist, 37 Mo. 501; Gates v. Lebaume, 19 Mo. 17; Shelley v. Boothe, 73 Mo. 77. (6) So interpleader's thirteenth and sixteenth instructions should have been given. Murray v. Cason, 15 Mo. 379; Henderson v. Henderson, 55 Mo. 555. (7) The court committed error in giving instructions for defendant in error. (8) The court erred in refusing to submit the special interrogatories as requested by interpleader. Laws 1885, p. 213; Clegg v. Waterbury, 88 Ind. 21.

Draffen & Williams, G. P. B. Jackson, L. F. Wood and W. P. Johnson & Son for defendant in error.

(1) The court properly awarded the opening and closing of the case to the plaintiff in the attachment. Porter v. Jones, 52 Mo. 399; McHale v. Oertel, 15 Mo.App. 583; St. Louis v. Ins. Co., 52 Mo. 529; Harvey v. Sullens, 56 Mo. 372. (2) The declarations of the assignors made before the assignment were competent to prove their intent. Holmes v. Braidwood, 82 Mo. 610; Stowell v. Hazelett, 66 N.Y. 635; Smith v. Mitchell, 12 Mich. 180; Goodwin v. Kerr, 80 Mo. 276. (3)...

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