Bonnette v. Clow

• Decision Date: 27 February 1922
• Docket Number: (No. 10839.)
• Parties: BONNETTE . v. CLOW.
• Court: South Carolina Supreme Court

110 S.E. 794

BONNETTE .

v.CLOW.

(No. 10839.)

Supreme Court of South Carolina.

Feb. 27, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Creditor.]

Appeal from Common Pleas Circuit Court of Richland County; W. H. Townsend, Judge.

Action by J. H. Bonnette against Arthur F. Clow. Judgment holding defendant in arrest and bail for disposing of his property with the intention of defrauding creditors, and defendant appeals. Appeal dismissed.

On the issue of whether the defendant disposed of his property with the Intention of defrauding plaintiff, the plaintiff testified that the defendant sold the mortgage within an hour after the dissolution of the attachment thereof. The defendant testified that he transferred the mortgage to a bank to secure existing indebtedness pursuant to a promise made two weeks theretofore, and that the transaction with the bank was bona fide. His testimony was corroborated by the president of the bank.

E. A. Blackwell, of Columbia, for appellant.

Buford Jackson and B. L. McDowell, both of Columbia, for respondent.

GARY, C. J. The following statement appears in the record:

"This action was commenced on or about June 5, 1920, and was based upon a certain promissory note, given by defendant to plaintiff, and also upon a contract between plaintiff and defendant, which note and contract are set out verbatim in the complaint. At the time of the commencement of the action, the plaintiff procured a warrant of attachment, under which he sought to attach a certain bond and mortgage, the property of the defendant, the said warrant of attachment having been issued upon an affidavit signed by the plaintiff, in which it was set out that defendant was preparing to leave the state with intent to defraud his creditors and was disposing of his property with intent to defraud his creditors.

"The defendant served notice of motion to dissolve the attachment, attached to which notice was a certificate of J. F. Walker, clerk of court, to the effect that he has possessionof the mortgage sought to be attached. Said motion was heard before Hon. W. H. Town-send, judge of the Fifth circuit, on June 18, 1920, and on that date he passed an order dissolving the attachment. Thereupon the plaintiff filed another affidavit, setting forth there-' in substantially the same allegations as in the former one, and procured a second warrant of attachment for the bond and mortgage in question. Upon effort being made to attach same, it developed that the defendant had parted with title and possession thereof. The second attachment was served June 21, 1920. Thereupon, under date of June 24, 1920, the plaintiff made another affidavit, which is set out in the record herein, on the strength of which he procured from Hon. W. H. Townsend, judge of the Fifth circuit, an order for the arrest of the defendant, under provisions of section 230 of the Code of Civil Procedure. Defendant furnished bail in the sum of $500 as provided by said order.

"The case was heard at the June, 1921, term of the court of common pleas for Richland county, and the presiding judge directed a verdict for the amount of the note sued upon, plus interest and attorney's fees. From this part of the judgment directing a verdict for the amount of the note plus interest and attorney's fees, no appeal is taken. The presiding judge submitted to the jury the issue as to whether or not defendant had disposed of the property in question, with intent to defraud the plaintiff. The jury found that he had, and judgment wa"s entered holding the defendant in arrest and bail. From the rulings and charge of the presiding judge upon this issue, the present appeal is taken."

The defendant's exceptions are as follows:

"(1) That his honor erred in refusing defendant's motion for a direction of a verdict, there being no testimony showing or tending to show that defendant had disposed of...