Claussen & Co. v. Easterling
| Decision Date | 05 July 1883 |
| Parties | CLAUSSEN & CO. v. EASTERLING. |
| Court | South Carolina Supreme Court |
1. Where an attachment has been levied, the defendant may attack it upon the ground that the allegations upon which it issued are untrue. In doubtful cases, an issue should be made for the jury, but this case having been heard and determined by the Circuit judge, on motion, without objection, this court did not interfere.
2. The findings of fact by the Circuit judge from the affidavits submitted at such hearing, reviewed and approved.
3. A defendant to the action may take the proper steps to vacate an attachment issued against him upon allegations of a fraudulent transfer of his property, although not the owner of such property at the time the attachment was levied thereon.
4. This case distinguished from Metts v. Piedmont & Arlington Life Insurance Company , 17 S. C. 120.
Before PRESSLEY, J., Barnwell, April, 1883.
This is an appeal from an order dissolving an attachment in the case of J. C. H. Claussen & Co. against J. R. Easterling. The action was commenced in February, 1883, and the motion to dissolve was noticed March 27th, and heard April 2d, 1883. The attachment had been issued upon an affidavit of one of the plaintiffs, setting forth the indebtedness, and charging a fraudulent sale of goods and mortgage of chattels by the defendant to his mother, made to defeat this claim, no delivery having been made and the defendant continuing in possession. The motion to dissolve was based upon affidavits in which a bona fide indebtedness by the defendant to his mother was shown, and a fair and open sale of the goods and chattels made, and no retention of possession by the defendant. There were also affidavits in reply.
On April 6th, 1883, Judge Pressley filed the following order:
The motion before me in this case is to dissolve plaintiffs' attachment. It is founded on allegations of fraud by defendant in conveying to his mother a portion of his stock in trade and his other personal property, and yet retaining possession of it. The testimony is very clear that before said conveyance the mother had a bona fide , valid recorded mortgage on said property and that the debt secured by it had not been paid. In December last she took a second mortgage of the same property to secure the same debt. That may or may not have been necessary, but it was certainly a wise precaution in view of the fact that the stock in trade had been changed after the first mortgage.
But the mortgage not being disputed by plaintiff, he still claims and alleges that the release of defendant's equity of redemption to his mother was pretensive, and that he is still in possession. He does not attempt to prove that said release was for an amount less than the full value of the property and he filed an affidavit of Mr. Dowling which directly corroborated the affidavit of defendant. He decided to sell out and quit that kind of business; besides, the sale of the stock offered to Mr. Dowling was not for cash, which could be concealed from defendant's creditors, but on credit for good security, which could easily be reached by defendant's creditors if his mother's claim was not superior to theirs. Failing to make the proposed sale, a portion of defendant's stock and fixtures were bona fide sold on like credit to Vogel & Co., and the remainder was sold to his mother for the consideration of her assuming a portion of defendant's debts, as principal, for which before she was only a surety.
But plaintiffs file an affidavit of Mr. Christie to the effect that defendant had expressed a willingness to use the Vogel notes in payment of his debts to plaintiff, if defendant had been so requested before the attachment against him. Knowing nothing of his character, and judging him solely by the statement and said affidavit, the only legitimate inference which I can possibly draw from it is that, to satisfy plaintiffs, defendant was willing to presume still further on the affections and indulgence of his mother and obtain her consent to his paying the plaintiffs out of assets already pledged to her on a bona fide debt.
As to his having traded away one of the mortgaged horses, I think that a fair construction of the mortgage allowed such changes by him.
But it is alleged that he is still in possession of the stock in the trade. The affidavits of the nearest neighbors to the store say otherwise. Plaintiffs' attorney swears that once since the transfer of the merchandise the defendant conducted sales to said attorney as previously, when defendant was owner of the store. It would be very strange if, after having involved his mother as surety for his debts, defendant should fail to do everything in his power to save her from loss on his account. If he were to assist her clerk to sell said goods, even a dozen times, that would be even less than the duty he owed for having involved her in his wild venture. As to the statement that her alleged clerk offered to insure the mere stock in the name of defendant, that is only competent in so far as it impeached his affidavit, and I disregard that in making up this judgment. The whole testimony fails to impress my mind that there is even the shadow of a proof of fraud in the testimony between the defendant and his mother.
It is therefore ordered and adjudged, that said attachment be set aside and the attached articles be forthwith released; further ordered that plaintiffs pay the costs of this motion.
From this order plaintiffs appealed.
Mr. James E. Davis , for appellant.
Mr. Robert Aldrich , contra.
The plaintiffs, appellants, brought action against the defendant upon an open account, and at the same time, upon an affidavit of J. H. Claussen, alleging a fraudulent bill of sale by the defendant to his mother, L. C. Easterling, of all of his stock of goods, and a mortgage also to his mother of all of his other personal property, of which he, defendant, still retained possession, issued an attachment, serving the summons and complaint as well as the attachment, on the same day, viz.: February 12th, 1883. The defendant put in a general denial to the complaint and moved, upon affidavits which will be found in the brief, for a dissolution of the attachment...
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