Claflin v. Sylvester

• Decision Date: 02 December 1889
• Citation: 99 Mo. 276,12 S.W. 508
• Parties: CLAFLIN et al. v. SYLVESTER et al.
• Court: Missouri Supreme Court

12 S.W. 508

99 Mo. 276

CLAFLIN et al. v. SYLVESTER et al.

Supreme Court of Missouri.

December 2, 1889.

ATTACHMENT — PRIORITY — WITHDRAWAL OF PLEA — GENERAL ASSIGNMENT.

1. The lien of an attachment will not be set aside or postponed in favor of junior attachments, where it appears that the debts sued for were bona fide; that the attachments were not sued out for the benefit of the debtors, or to aid them in hindering or defrauding other creditors; and that the only object of the attaching creditor was to get preference for himself.

2. The withdrawal, after return of process duly served, of a plea in abatement entered to an action commenced by a writ of attachment, does not vitiate the lien of the attachment, as the character of the judgment will still be one in the enforcement of the lien acquired by the levy of the attachment.

3. In proceedings to set aside a prior attachment lien, so that a junior attachment may become a first lien on the attached property, the court will not consider the question whether the original attachment was a part of a general assignment of the debtors, which would inure to the benefit of all the creditors.

Error to St. Louis circuit court; GEORGE W. LUBKE, Judge.

Nathan Frank and Albert Arnstein, for plaintiffs in error. Henry D. Laughlin, for defendants in error.

BRACE, J.

This is a proceeding under the provision of section 447, Rev. St. 1879, whereby Sylvester Hilton & Co., and 32 other subsequent attaching creditors of Leubrie Bros., seek by motion to set aside or postpone the lien of two prior attachments, — one in favor of H. B. Claflin & Co., for $39,698.80, and one in favor of Jacob Friedman & Co., for $24,549.73, on the grounds — "First, that the debts sued for by Claflin & Co. and Friedman & Co. were, and are, not bona fide debts due and owing by the Leubrie Bros.; second, that the attachments thereon were levied collusively, for the purpose of giving the Leubrie Bros. the control of the property taken thereunder; third, that said attachments were not sued out adversely, in good faith, but in furtherance of a conspiracy between the Leubries and plaintiffs, for the purpose of preventing the bona fide creditors of the Leubrie Bros., including these movers, from collecting their just demands." On the 19th of December, 1884, Claflin & Co. and Friedman & Co., defendants in error, sued out their said attachments, and caused the same to be levied on the stock in trade of the Leubrie Bros. Later, on the same day, Leubrie Bros. made a voluntary assignment for the benefit of all their creditors. After such assignment was made, plaintiffs in error, being 33 other creditors of the Leubrie Bros., sued out attachments against them, and caused the same to be levied upon the same property taken under the prior writs of defendants in error. Thereafter a sale of the property was had by the sheriff, and sufficient of the proceeds thereof to satisfy the claims under the two prior attachments of defendants in error are in the hands of the sheriff. Upon the return-day of the writ in each of these two cases, Leubrie Bros., the defendants therein, filed pleas in abatement, verified by affidavit. Afterwards these pleas were withdrawn. The attachments were sustained; and thereupon defendants in error, plaintiffs therein, took judgment each for the amount hereinbefore stated, for which amount and costs each were awarded execution, to be satisfied out of the property attached and sold by the sheriff. The application of the money to the payment of these judgments was stayed in the trial court, to await the decision of this joint motion filed in each case by plaintiffs in error, the later attaching creditors. On the hearing of the motions they were overruled, the order staying the payment of the fund in the sheriff's hands upon the executions in favor of defendants in error was vacated at the cost of the movers, and they sued out this writ of error.

1. While this proceeding may be considered in its nature one of equitable cognizance, and we might not feel concluded by the findings of the trial court upon the facts, yet, in the absence of any abstract of the evidence such as our rules require, and which the plaintiffs in error in this case have not seen proper to furnish, the presumption will be indulged that those findings are supported by the evidence. Craig v. Scudder, ante, 341, (opinion at this term;) Jayne v. Wine, 11 S. W. Rep. 969. The issues, and the probative force of the evidence given, are so clearly stated, and three of the five points in the brief of counsel for plaintiffs in error for reversal, made on the evidence, are so...