Avera v. Rice
| Decision Date | 16 October 1897 |
| Citation | 42 S.W. 409,64 Ark. 330 |
| Parties | AVERA v. RICE |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.
Reversed and remanded for new trial.
G. W Murphy and Gaughan & Sifford, for appellant.
An assignee is not bound by a judgment against the validity of the assignment, in an action where he was not made a party. 19 Wis. 114; Herman, Estoppel & Res Adjudicata, 202; 15 Ark 128; 38 Ark. 332.
On the 28th of December, 1894, Rice, Stix & Co. instituted an action in the Ouachita circuit court against Lazarus & Levy, to recover a debt of $ 1,519.80 due to them by the defendants on an account; and sued out an order of attachment on the ground that the defendants had sold, conveyed and disposed of their property with the intent to cheat and defraud their creditors, and hinder and delay them in the collection of their debts; and caused the sheriff to seize the property of the defendants in obedience to the command of the same.
On the 29th of January, 1895, W. F. Avera filed a complaint in the action, stating, in effect, that he was the owner and entitled to the possession of the property attached by virtue of a deed of assignment executed and delivered to him on the 27th of December, 1894, by the defendants, Lazarus & Levy for the benefit of their creditors, and that he was in possession of the property when the order was delivered to the sheriff, and when it was executed. The grounds of attachment were controverted by the defendants; and on the 20th of April, 1895, the issues in the attachment were tried, and the court found the deed of assignment was void for fraud, and sustained the attachment, but Avera was not a party to that trial. On the 22d of April, 1895, Rice, Stix & Co. filed an answer to the complaint of Avera, admitting the execution of the deed of assignment to Avera, but averring that it was fraudulent and void, and denying that Avera was the owner and entitled to the property. On the same day a jury was impaneled to try the issues joined by this answer. In the trial Avera offered to prove the execution and delivery of the deed of assignment by which the property attached was conveyed to him by Lazarus & Levy for the benefit of their creditors, and the court on objection, refused to allow him to do so. He offered to read it as evidence, and the court, on objection, refused to admit it. While he was testifying, Avera was asked by his attorney if he was in possession of the property in controversy at the time it was attached. The question...
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