Brown v. Bank

• Decision Date: 01 October 1895
• Docket Number: 16
• Parties: N. B. BROWN et al. v. THE CLOUD COUNTY BANK et al
• Court: Kansas Court of Appeals

42 P. 593

2 Kan.App. 352

N. B. BROWN et al. v. THE CLOUD COUNTY BANK et al

No. 16

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Opinion Filed November 11, 1895.

MEMORANDUM.--Error from Cloud district court; F. W. STURGES judge. Action by N. B. Brown and John C. Elliott, partners as N. B. Brown & Co., against The Cloud County Bank, of Concordia, as garnishee. Helen Roberts filed an interplea. Verdict and judgment for the interpleader. Plaintiffs bring the case here. Reversed. The opinion herein, filed November 11, 1895, states the material facts.

Judgment reversed and case remanded.

Sheafor & Savary, and Charles L. Botsford, for plaintiffs in error.

Theodore Laing, for defendant in error Helen Roberts.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

Various errors are assigned in this case by the plaintiffs in error, but the only one which we deem of sufficient importance to consider at any length is that based upon the action of the court in directing the jury to return a verdict against plaintiffs in error, who were plaintiffs below. The verdict was so directed on the ground that the plaintiffs' cause of action was virtually one for relief on the ground of fraud, and, as more than two years had elapsed since the fraud was committed, the bar of the statute of limitations precluded any recovery. The question this court has to consider is: Is this a case to which applies the statute limiting the time for commencing "an action for relief on the ground of fraud"? The facts are these: N. B. Brown & Co., plaintiffs in error, obtained a judgment in the district court of Cloud county, on April 29, 1881, for $ 3310.70 against S. J. Roberts. On April 27, 1886, an execution was issued and returned "No property." By proceedings in garnishment, instituted December 3, 1888, certain money deposited in the name of S. J. Roberts in the Cloud County Bank was attached as his property. Helen Roberts, wife of S. J. Roberts, filed an interplea, claiming to be owner of the money, upon which issue was joined and a trial had before the court and a jury. On the part of the plaintiffs, evidence was introduced tending to show that the money attached was the property of S. J. Roberts, and that any claim made thereto by his wife was a mere sham and pretense for the purpose of defrauding creditors. On the other hand, Helen Roberts introduced evidence tending to show that on or about April 25, 1881, four days before the judgment was rendered, S. J. Roberts conveyed to his father, Joshua Roberts, his farm and personal property, consisting of 7 horses and colts, 4 cows and calves, 45 hogs and pigs, 400 bushels of corn, and farming implements--being all the property he had--in payment of an existing indebtedness of S. J. Roberts to his father, and that a short time thereafter Joshua Roberts executed conveyances of the property to her. The evidence further tended to show that there was no actual change of possession of any of the property; that S. J. Roberts continued in charge and management of the business as he had been before such conveyance was made; and that the money in the bank was the proceeds of hogs sold by him from the farm a few days before the summons in garnishment was issued, which were claimed to be derived from the property conveyed to Helen Roberts. The court held that the plaintiffs were barred by the two-years statute of limitations from questioning the alleged ownership in the money attached, and directed a verdict for the interpleader.

In thus taking the case from the jury and directing a verdict we think the court erred. This cannot be considered a proceeding on the part of the plaintiffs to set aside, on the ground of fraud, the transfer of property alleged to have been made to Helen Roberts in 1881. The contention of plaintiffs is, that in fact and in law...