Crooke v. Deas & Duke
| Decision Date | 07 February 1927 |
| Docket Number | 26016 |
| Parties | CROOKE v. DEAS & DUKE. [*] |
| Court | Mississippi Supreme Court |
1. APPEAL AND ERROR. Appeal is authorized from judgment in attachment and garnishment of less than fifty dollars, where counterclaim for damages after deducting judgment exceeded fifty dollars (Hemingway's Code, sections 66, 162, 163).
Under Hemingway's Code, section 66 (Code 1906, section 86) providing for appeals from court of justice of the peace to circuit court, and to supreme court in controversies exceeding fifty dollars, appeal is authorized from judgment in attachment and garnishment proceeding for less than fifty dollars, where counterclaim, interposed in accordance with sections 162, 163 (Code 1906, sections 170, 171), for damages, after deducting amount of judgment, exceeded fifty dollars.
2 ATTACHMENT. Defendant in attachment suit may file counterclaim for actual damages and attorney's fee (Hemingway's Code, sections 162, 163).
Hemingway's Code, sections 162, 163 (Code 1906, sections 170, 171), held to authorize defendant in attachment suit on the trial of the attachment issue, made up to file a counterclaim for actual damages and attorney's fee.
3 ATTACHMENT. Grounds of attachment, authorized by statute must be proven (Hemingway's Code, section 125).
Grounds of attachment, under Hemingway's Code, section 125 (Code 1906, section 133), must be proven, since there is no right of attachment simply on ground that debtor owes debt and obstinately neglects to pay it.
4. ATTACHMENT. Evidence held insufficient to sustain attachment (Hemingway's Code, section 125).
Evidence in attachment proceeding, under Hemingway's Code, section 125 (Code 1906, section 133), held insufficient to sustain attachment.
5. ATTACHMENT. There must be both concealment and unjust refusal to apply to debts to justify attachment (Hemingway's Code, section 125).
In order to sustain attachment under Hemingway's Code, section 125 (Code 1906, section 133), there must be both concealment and unjust refusal of debtor to apply to payment of his debts.
6. ATTACHMENT. Intent to defraud must exist when debt is created for attachment on such ground.
An intent to defraud must exist at time debt was created, in order to authorize attachment on that ground.
APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.
Attachment and garnishment proceeding by Deas & Duke against J. G. Crooke, wherein the New Orleans & Northeastern Railroad Company was garnishee. Judgment for plaintiff and sustaining the attachment, and defendant appeals. Reversed and remanded.
Reversed and remanded.
Currie, Smith, Stevens & Currie, for appellant.
There is not a single word of testimony in this entire record to substantiate any ground for attachment. The record shows conclusively and without contradiction that the only property or income of the defendant was such money as he received from the railroad company. The plaintiffs could not and did not undertake to prove that the defendant had any property or rights in action which he concealed or unjustly refused to apply to the payment of his debts. Roach et al. v. Brannon, 57 Miss. 490.
If the record here showed, as it certainly does not, that the defendant was a spendthrift and gave his money away, still plaintiffs would have had no ground for attachment. The second allegation in plaintiff's affidavit is "that he has converted or is about to convert his property into money or evidences of debt with intent to place it beyond the reach of his creditors." We are unable to find a single word of testimony that would even inferentially support this allegation of the affidavit. The opinion in Thames v. Sharbrough, 27 So. 834, is short but to the point. The facts in that case were far less favorable to the defendant than the facts in the present case.
The last ground for attachment relied upon by plaintiffs and alleged in their affidavit was "that he fraudulently contracted the debt or incurred the obligations for which suit has been or is about to be brought." We have searched the record carefully and are unable to find a line of testimony that would substantiate this charge, directly or indirectly.
The burden was upon the plaintiffs to prove by a preponderance of the evidence that the defendant intended at the time he made the purchase to defraud the plaintiffs. The plaintiffs could not and did not attempt to make any such proof. Hughes v. Lake, 63 Miss. 552.
We are unable, after a careful examination of the authorities to find any case as weak as that of the plaintiffs here. We, therefore, submit that the motion made by defendant for a directed verdict at the close of plaintiffs' case should have been sustained and the peremptory instruction requested by the defendant at the close of the testimony should have been granted. Thames v. Sharbrough, 27 So. 834; Terry v. Jolly, 75 So. 756. The defendant was entitled to a directed verdict upon the attachment issue, and the cause should be reversed and remanded in order that a jury may assess his damages.
F. M. Hunt, for appellee.
The entire evidence in the case shows that there is very conclusive proof to sustain the attachment. The jury was certainly justified in believing that the debt was fraudulently made for the reason that the appellant never intended in good faith to pay the debt. Either fraudulent concealment of his assets or an unjust refusal to pay this debt is sufficient to sustain the attachment. It is very evident that the appellant is endeavoring to convert into cash the indebtedness of the railroad company to him, and it is his intention when he does so to place it beyond the reach of his creditors.
Counsel for appellant cite only four cases in their brief, none of which sustains their contentions. On the other hand, in Dunlap v. Fox, 2 So. 169, the rule is laid down by the court that the fact of the insolvency of the debtor at the time he contracted the debt may be considered by the jury on the question as to whether or not the debt was fraudulently contracted. In the case at bar if the defendant was not abundantly able to pay the debt at or before the time the suit was filed, he was certainly insolvent at the time the debt was contracted and he must have had no expectation of being able to pay it when due.
In Marks v. Stoner, 11 So. 186, this court held that the action to recover a debt, aided by an attachment, on the ground that the debt was fraudulently contracted by defendant, the court erred in instructing the jury that the evidence must show that defendant intended never to pay the debt at the time it was made and that such intention must be presumed not to have existed until proved. The court took the position that this instruction asked by the defendant was too favorable to defendant, and reversed the judgment of the court below in favor of the defendant, awarding a new trial.
Brief by Currie, Smith, Stevens & Currie, for appellant, in response to questions by the court.
Under section 66, Hemingway's Code (section 86, Code of 1906) or otherwise, has the supreme court jurisdiction of this appeal? See section 162, Hemingway's Code (section 170, Code of 1906) with respect to the defendant's plea in abatement. We call the court's attention to the mandatory language of the statute to the effect that "the court shall order a jury to be impaneled to try the issue; and if the jury shall find for the defendant, it shall assess damages against the plaintiff for wrongfully suing out the same." See the concluding language in section 66, Hemingway's Code (section 86, Code of 1906), which is a portion of the section governing appeals to this court in causes originating in the justice court. We call especial attention to the language of this statute providing that "where the amount in controversy exceeds the sum of fifty dollars, either party shall be entitled to an appeal to the supreme court, as in cases originating in the circuit court."
It was the manifest intention of the legislature to give every litigant the right to have his claim passed upon by the supreme court, whether he be plaintiff or defendant, provided only that the amount of his claim exceeded the sum of fifty dollars. Upon the question of the right of the appellant to appeal where he was the defendant in the lower court and where he complains of a judgment disallowing his claim, see 3 C. J., section 221, page 417 and section 222, pages 417-18.
In further support of our contentions, we call the attention of the court to the following authorities holding that a claim for damages introduced by a defendant is, as to him, the amount in controversy. 3 Am. and Eng. Ency. of Law and Practice, section B, pages 903-04; Dunshane et al., plaintiffs in error, v. Joseph Benedict, 30 L.Ed. 810; Ryan, plaintiff in error, v. Bindley, 17 L.Ed. 559-60; Sire, plaintiff in error, v. Ellithorpe Air Brake Co., 34 L.Ed. 801-03; Elias Block & Sons, plaintiffs in error, v. Darling, 35 L.Ed. 476-78; Buckstaff et al. plaintiffs in error, v. Russell & Co., 38 L.Ed. 292-97.
Assuming that the plaintiffs had a right to offset their demand against damages of the defendant, still the amount for which the appellant should have obtained judgment, if able to substantiate his claim for damages, would be one hundred sixty-one dollars and eighty cents. It is, therefore, apparent that this court has jurisdiction of the appeal now before it.
Additional brief of F. M. Hunt, for appellee.
The statute, section 66, Hemingway's Code (section 88, Code of 1906), provides that in a case arising in the justice court the parties shall have a right to appeal if the amount in controversy exceeds the sum of fifty dollars. It is only by virtue of this...
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