Bickler v. Kendall

• Decision Date: 23 September 1885
• Citation: 24 N.W. 518,66 Iowa 703
• Parties: BICKLER AND OTHERS v. KENDALL, DEFENDANT, AND ANOTHER, INTERVENOR.
• Court: Iowa Supreme Court

66 Iowa 703

24 N.W. 518

BICKLER AND OTHERS

v.KENDALL, DEFENDANT, AND ANOTHER, INTERVENOR.

Supreme Court of Iowa.

Filed September 23, 1885.

Appeal from Louisa district court.

The plaintiffs each instituted a suit on a money demand against defendant R. S. Kendall, and in each suit a writ of attachment was issued against the property of defendant. The sheriff made an attempt to levy said writs on a certain stock of goods which had formerly belonged to defendant, but which at the time were in possession of the intervenor. The suits were commenced on the seventeenth day of October, 1881, and on the twenty-fifth of the following January said Garrett filed his petition in intervention, in which he alleged that he was the owner of said goods and in possession thereof at the time of the pretended levy of said writs of attachments thereon, having purchased the same from defendant Kendall. Also that the return of said writs of attachment, which show levies on said stocks of goods, are not true in fact, but that the officer who attempted to make said levies never took possession of the property, and never entered the building in which it was situated, and did not see the property at the time, and did nothing towards effecting a levy on it, except to barricade the door to the building in which it was situated, and thereby exclude intervenor therefrom.

The answer to this petition set up that the sale of said property by defendant Kendall to intervenor was made for the purpose of hindering, delaying, and defrauding the creditors of the former in the collection of their debts, and alleges that plaintiffs are creditors of Kendall. The causes were tried together in the district court. There was a verdict and judgment for the intervenor, and plaintiffs appeal.Sprague & Springer and Dodge & Dodge, for appellants, Bickler, Winyer & Co. and others.

E. W. Tatlock and Newman & Blake, for appellees, R. S. Kendall and others.

REED, J.

The questions presented by the pleadings are (1) whether there was a valid levy of the attachments on the property in question; and (2) whether the sale of the goods by Kendall to intervenor was made for the purpose of hindering, delaying, or defrauding Kendall's creditors in the collection of their debts.

1. The evidence, without any conflict, establishes the following facts, which should be considered in determining the first question: The sale by Kendall to Garrett was made a few days before the attachments were sued out. The property which was the subject of the sale consisted of a stock of general merchandise, and was situated in a building in which Kendall had carried on business as a merchant. After the sale, Garrett took possession and continued to carry on the business at the same place. After he received the writs the sheriff informed Garrett that he intended to levy on the property, and the latter told him to go ahead and make the levy. The sheriff afterwards went to the building for the purpose of making the levy, and finding it closed and the doors locked, he proceeded to barricade the front door. There was a rear door to the building, which was locked, and Garrett or his attorney had the key to it, but they made no effort to enter the building after the front door was barricaded, and the sheriff did not enter it to make an inventory of the property, or for any other purpose, before returning the writs, nor did he place any person in charge of either the goods or building. The court gave the following instruction for the guidance of the jury in determining the question whether there had been a valid levy of the attachments, viz.: “If you shall find from the evidence that the intervenor held possession of the stock of goods in controversy in a store building in Wapello, and the plaintiffs caused this writ of attachment to...