Chambers v. Wilson

• Decision Date: 08 October 1940
• Docket Number: 8344.
• Citation: 294 N.W. 180,67 S.D. 495
• Parties: CHAMBERS v. WILSON et al.
• Court: South Dakota Supreme Court

294 N.W. 180

67 S.D. 495

CHAMBERS v. WILSON et al.

No. 8344.

Supreme Court of South Dakota

October 8, 1940

Rehearing Denied December 6, 1940.

Appeal from Circuit Court, Spink County; Frank R. Fisher, Judge.

Suit by Arthur Chambers against Harry M. Wilson and others, as trustees of the Ashton State Bank, a corporation, insolvent and in the process of liquidation, and another, to enjoin the defendants from levying upon and selling a stock of merchandise owned by Ada Chambers in disregard of the lien of plaintiff's chattel mortgages. From a declaratory judgment establishing the validity of the mortgages, the defendants appeal.

Judgment affirmed.

D. H Roberts, of Ashton, and Sterling, Clark & Grigsby, of Redfield, for appellants.

W. F Bruell, of Redfield, for respondent.

SMITH Presiding Judge.

Plaintiff sought by his complaint to enjoin the defendants as judgment creditors of Ada Chambers from levying upon and selling a stock of merchandise and store fixtures owned by her in disregard of the lien of two chattel mortgages owned by plaintiff. The answer denied the validity of the mortgages and admitted that defendants intended to proceed under execution as alleged in the complaint. The court entered a declaratory judgment establishing the validity of plaintiff's mortgages. The defendants appeal.

Of the ten assignments of error, but five are argued by appellants. The assignments not argued are deemed abandoned. Day v Northwest German Farmers' Mutual Insurance Co., 57 S.D. 189, 231 N.W. 900.

The assignments presented are grouped under three propositions, viz.: (1) The court erred in receiving any evidence; (2) the court erred in receiving certain exhibits; (3) the evidence is insufficient to support certain findings made by the court.

The objection to the reception of any evidence was in the following words: "Defendants at this time object to the reception of any evidence for the reason the complaint does not state facts sufficient to state a cause of action against the defendants or any of them and that there are no legal or equitable grounds set up in the complaint sufficient upon which to predicate the relief that plaintiff seeks, or any relief whatsoever." The objection failed to point out the particular grounds of insufficiency upon which defendants relied, and was therefore properly overruled. Conklin v. Thorson, 65 S.D. 588, 276 N.W. 729; Heidner v. Germschied, 41 S.D. 430, 171 N.W. 208.

The objection to the chattel mortgages as exhibits in the case was predicated upon certain of their provisions, and upon testimony then in the record indicating a knowledge on plaintiff's part that Ada Chambers was selling the mortgaged merchandise in the regular course of retail trade. It was asserted that the instruments were fraudulent and absolutely void as to defendant creditors. The objections were ruled correctly by the learned trial court. This jurisdiction is committed to the view that where a chattel mortgagor is permitted to retain possession of the mortgaged property with express or tacit power to sell, only a rebuttable presumption of fraud arises. Greeley v. Winsor et al., 1 S.D. 618, 48 N.W. 214; Hollenbeck v. Louden, 35 S.D. 320, 152 N.W. 116; Black Hills Mercantile Co. v. Gardiner et al., 5 S.D. 246, 58 N.W. 557; 73 A.L.R. 250. Whether the mortgages at bar were fraudulent in character presented an issue of fact to be determined after considering their provisions in the light of all the evidence. Black Hills Mercantile Co. v. Gardiner et al., supra. The instruments were properly received in evidence.

The...