B. Lowenstein & Bro. v. Powell

• Decision Date: 27 October 1890
• Parties: B. LOWENSTEIN & BRO. v. W. B. POWELL
• Court: Mississippi Supreme Court

8 So. 269

68 Miss. 73

B. LOWENSTEIN & BRO. v. W. B. POWELL

Supreme Court of Mississippi

October 27, 1890

October 1890

FROM the circuit court of the second district of Hinds county HON. J. B. CHRISMAN, Judge.

The appellants, B. Lowenstein & Bro., sued out an attachment against the appellee, W. B. Powell. The defendant filed a plea in abatement traversing the grounds of attachment, and on the trial of the issue raised by this plea, the court instructed the jury to find for defendant. Thereupon judgment was entered discharging the attachment, and plaintiffs and sureties on the attachment bond were taxed with the costs of the suit. A third person had interposed a claim for the attached property.

On the 15th of September, 1890, more than five days after the term at which judgment was rendered, the plaintiffs gave bond and prosecuted this appeal.

Section 2435 of the code of 1880 is as follows: "If the plaintiff, within five days after the expiration of the term of the court at which judgment is rendered discharging his attachment, shall perfect an appeal from such judgment, the attachment shall not be discharged, nor garnishees nor property be released therefrom by such judgment, but such appeal shall preserve the attachment in full force, to await the result of the appeal."

And section 3 of the act of March 11, 1884, provides: "That whenever the issue joined upon a plea in abatement of any writ of attachment shall be found for the defendant, the judgment of the court shall be that the defendant recover of the plaintiff and his sureties the amount of the damages assessed by the jury and costs, that the suit as well as the writ shall abate." Laws 1884, p. 76.

Reversed and cause remanded.

E. E Baldwin, for appellant.

It is submitted that the plaintiffs made out a prima facie case of fraud, and that upon the evidence the case should have been submitted to the jury. The sale of land to appellee's wife and the retention of his part of the purchase-money; his statement to the witness, Mims, that he would pay the debt, and his failure so to pay it when he had the money; the sale of the goods that were attached and the defendant's cotton shortly after the sale of the lands to his wife; the pretended payment of an exaggerated debt to his mother;--all these were facts upon which the plaintiffs were entitled to go to the jury. It will be remembered, too, that a great deal of the evidence upon which plaintiff relied was found in the defendant's books.

The rule is that whenever circumstances are proven from which, if left unexplained, fraud can be inferred, it is improper to exclude the evidence. Pickard v. Samuels, 64 Miss. 822, is similar to this case, and should govern in its decision.

C. M. Williamson and D. S. Fearing, for appellees.

1. To sustain the charge of fraud the account of Mrs. C. A. Powell, as found upon the books of defendant, was introduced. This account shows that the defendant at the time he commenced business was indebted to his mother, Mrs. C. A. Powell, in the sum of $ 4818.75. This, with the interest, was due, and it was the consideration of the bill of sale. Not a word of testimony was introduced to show fraud in the conveyance of the land to M. F. Powell. The testimony of Peyton was wholly insufficient to impeach the sale of the stock of goods.

The appellants wholly failed to make out a case, and the court properly instructed the jury to find for the defendant. Giving the greatest weight possible to plaintiffs' testimony, it did nothing more than raise a suspicion, and upon this they were not entitled to a verdict. Tuteur v. Chase, 66 Miss. 476.

2. After verdict for defendant, the statute provides that an appeal shall be taken within five days in order to preserve the lien of the attachment. Code 1880, § 2435.

The failure to prosecute the appeal within five days discharged the attachment, and released the claimant. Pfifer & Dreyfus v. Hartman, 60 Miss. 508.

Section 3 of the act of 1884 provides that when a plea in abatement in an attachment case shall be found for the defendant, the suit as well as the writ shall abate. Laws 1884, p. 77. The failure to prosecute an appeal within five days discharges the attachment under the above section of the code; and, under the act of 1884, the suit itself went with it. There was no judgment on the merits in the circuit court; this appeal is from the judgment discharging the attachment. This court, therefore, has no jurisdiction of the case, and must either affirm the judgment or dismiss the appeal.

OPINION

WOODS, C. J.

It is contended for appellee that the attachment herein is discharged and the property levied upon released, for the reason that the appeal was not perfected within five days after the expiration of the term of the court at which the judgment was rendered; and, furthermore that, under the provisions of section 3, chapter 64, acts of the legislature of 1884, entitled "An act relating to...