Barnett v. Kinney

• Decision Date: 05 March 1890
• Citation: 23 P. 922,2 Idaho 740
• Parties: BARNETT v. KINNEY, SHERIFF
• Court: Idaho Supreme Court

23 P. 922

2 Idaho 740

BARNETT v. KINNEY, SHERIFF

Supreme Court of Idaho

March 5, 1890

VOLUNTARY ASSIGNMENT-ATTACHMENT-CONFLICT OF LAW-ATTACHING CREDITOR.-A voluntary assignment of personal property, situated in the territory, by a citizen of a sister territory, made in the latter, in trust for all his creditors and with preferences is not good as against a nonresident attaching creditor, the law of the territory where property is situated not allowing preferences.

COMITY BETWEEN STATES.-A state is not bound to accept the transfer laws of another state affecting property located within its borders.

INSOLVENCY LAWS OF IDAHO.-In Idaho the insolvent's property must be disposed of for the benefit of all the creditors without preferences or priority, and the law makes no distinction between residents and nonresidents.

Dissenting opinion appears in 24 P. 624.

APPEAL from District Court, Alturas County.

Reversed and remanded, with instructions.

Angel &amp Sullivan, for Appellant.

Before the judgment could be attacked, the findings must be set aside, because not justified by the evidence, and this could only be done on motion for a new trial. (Reed v. Bernal, 40 Cal. 628.) When a court draws erroneous conclusions of law from its findings of facts, it is a decision against law, for which a new trial should be granted. (Simmons v. Hamilton, 56 Cal. 493; Martin v. Matfield, 49 Cal. 42; Knight v. Roche, 56 Cal. 15.)

Kingsbury & McGowan and C. S. Varian, for Respondent.

There being no issue of facts, the facts being all conceded, the court could commit no error as to them, nor could there be a re-examination of what was never examined or even in issue. (People v. Mullins, 10 Cal. 19; Funkenstein v. Elgutter, 11 Cal. 328; Rickey v. Superior Court, 59 Cal. 662.) A motion for a new trial was not the proper way to inform the court as to the law, and that there can be no new trial granted where no issue of fact has been tried. (Stats., secs. 4438, 4439; 3 Estee's Pleading and Practice, sec. 4847; Knight v. Roche, 56 Cal. 17; Martin v. Matfield, 49 Cal. 43; Quinn v. Smith, 49 Cal. 166.) A voluntary assignment, valid under the law of the domicile of the assignor, will convey personal property situate in another state, especially if there are no home creditors, and always if the assignee has taken possession. (Hanford v. Paine, 32 Vt. 442, 78 Am. Dec. 586, and note; Speed v. May, 17 Pa. St. 91, 55 Am. Dec. 540; Law v. Mills 18 Pa. St. 185; In re Paige & Sexsmith Lumber Co., 31 Minn. 136, 16 N.W. 700; Richardson v. Leavitt, 1 La. Ann. 430, 45 Am. Dec. 90; Johnson v. Sharp, 31 Ohio St. 611, 27 Am. Rep. 529; Forbes v. Scannell, 13 Cal. 242; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590; Einer v. Beste, 32 Mo. 240, 82 Am. Dec. 129; Whipple v. Thayer, 16 Pick. 25, 26 Am. Dec. 626; Burlock v. Taylor, 16 Pick. 335; Daniels v. Willard, 16 Pick. 36; Todd v. Bucknam, 11 Me. 41-44; Smith v. Railroad Co., 23 Wis. 267; Frazier v. Fredericks, 24 N. J. L. 162; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671; Atherton v. Ives, 20 F. 894; Butler v. Wendell, 57 Mich. 62, 58 Am. Rep. 329, 23 N.W. 460; Farrington v. Allen, 6 R. I. 449; Walters v. Whitlock, 9 Fla. 87, 76 Am. Dec. 607; Miller v. Kernaghan, 56 Ga. 155; Gregg v. Sloan, 76 Va. 497; Sanderson v. Bradford, 10 N.H. 260; Atwood v. Insurance Co., 14 Conn. 555; Moore v. Willett, 35 Barb. 663; Hoyt v. Thompson, 19 N.Y. 207; Ockerman v. Cross, 54 N.Y. 29; Wilson v. Carson, 12 Md. 54; Baltimore etc. R. R. Co. v. Glenn, 28 Md. 287, 92 Am. Dec. 688; Harrison v. Farmers' Bank, 9 W.Va. 424; Dundas v. Bowler, 3 McLean, 397, Fed. Cas. No. 4141.)

SWEET J. BEATTY, C. J., Concurring. BERRY, J., Dissenting.

OPINION

SWEET, J.

On the twenty-third day of November, 1887, M. H. Lipman, a citizen of Utah, doing business at Salt Lake City, made an assignment to plaintiff herein in trust for all his creditors. The deed of assignment carried with it certain personal property situated in Hailey, Alturas county, Idaho territory, to wit, a stock of goods and merchandise. It is admitted that at the time the assignment was made said Lipman was insolvent; that in all respects the assignment was made in conformity with the laws of Utah territory; and that, under said deed of assignment, the creditors of said assignor were divided into classes, certain classes being designated as preferred creditors, and said assignee being instructed by said deed of assignment to observe said preferences in settling the liabilities of the assignor as fast as the sale of said merchandise enabled him to do so. On the twenty-fifth day of November, 1887, plaintiff, as said assignee, took possession of the said stock of goods situated in Hailey, in said Alturas county and Idaho territory, having first caused to be duly recorded in said county the said deed of assignment. On the following day, to wit, the twenty-sixth day of November, 1887, defendant herein, then the duly qualified and acting sheriff of said Alturas county, levied upon and took possession of said goods under and by virtue of a writ of attachment issued out of the district court of the second judicial district of Idaho territory, in and for said Alturas county, in an action wherein the St. Paul Knitting Works Company, a corporation, was plaintiff, and the said M. H. Lipman was defendant. On the twelfth day of December, 1889, plaintiff commenced an action in said court against the defendant herein for the recovery of the possession of said goods and chattels, or for the sum of $ 5,000, the value thereof, in case a delivery of the same could not be had. Plaintiff obtained judgment in the lower court, took possession of said goods, and thereupon proceeded to sell the same, realizing therefrom the sum of $ 4,000. Defendant appealed from said judgment, and the assignee now holds said sum of money subject to the final determination of this litigation. By a careful examination of the findings of the lower court, we find that the issues here presented are clearly and distinctly set forth. They are, in brief, to recapitulate, as follows: The assignor, at the time of making said assignment, was a nonresident of this territory. The assignment was made in strict conformity with the laws of Utah territory, of which he was a citizen. The attaching creditor was also a nonresident of Idaho, and it is conceded that said Lipman was justly indebted to said corporation in the sum of $ 1,992; that at the time the writ of attachment was levied the assignee was in possession of the goods; and that the deed of assignment had been duly recorded in said county; also that the defendant was the duly qualified and acting sheriff of said Alturas county.

The legal question involved is as follows: May a nonresident make an assignment, with preferences, of personal property situated in this territory, that will be valid as against a nonresident attaching creditor? And this question further involves the effect, first, of possession by the assignee when the attachment is levied; second, the rule of comity between the states; and, third, the effect of the attaching creditor being a resident or a nonresident of the territory. We premise a discussion of these questions with the remark that a decision by the United States supreme court is binding upon us, and that whenever any issue presented here has been clearly and distinctly settled by said court, we need look no further.

We will first take up the question of citizenship, and we submit it in this form: Will the courts of this territory concede to any of its citizens any rights or privileges under its attachment laws not extended to any citizen of the United States who is a nonresident of the territory? The attachment laws of this territory give no preferences as between resident and nonresident attaching creditors. Therefore, under the rule laid down in Green v. Van Buskirk, 74 U.S. 139, 7 Wall. 139, 19 L.Ed. 109, we must consider the matter settled. It is there held that the rights of the attaching creditor are not at all affected by the question of citizenship. In Sheldon v. Blauvelt, a case recently decided by the supreme court of South Carolina, reported in 29 S.C. 453, 7 S.E. 593, the same conclusion is reached. The statute of South Carolina with reference to assignments by insolvent debtors is the same, in effect, as are the provisions of our own statute, and the facts involved in the case just cited are precisely the same as those presented in the case at bar. Section 2, article 4 of the constitution reads as follows: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." We think that the decision before alluded to in 7 Wall., in which this article is construed as affecting the rights of nonresident citizens in cases similar to this, applies to the facts as they are here presented; and under that decision, as well as under Sheldon v. Blauvelt and the authorities therein cited, we must conclude that the nonresidence of the attaching creditor in this case could not in any manner prejudice his rights, and that he was entitled to the same privileges that, under the same circumstances, would be accorded to any citizen of Idaho.

In reaching this conclusion we are following what we conceive to be the rule laid down by the supreme court of the United States; and the wisdom of the principle thus enunciated by our highest court is as unquestionable as its authority. When once a citizen has been accepted by any court of the United States as a suitor, it does not seem to be in accordance either with the principles of justice, or with common fairness, or with common honesty between man and man, to question him as to the particular state in which he may reside, and then give or refuse him...