Dickenson v. Stults
| Decision Date | 13 July 1904 |
| Citation | 48 S.E. 173,120 Ga. 632 |
| Parties | DICKENSON v. STULTS. |
| Court | Georgia Supreme Court |
BANKRUPTCY — PREFERENTIAL PAYMENTS—ACTION BY TRUSTEE—SUFFICIENCY OF EVIDENCE —REVIEW ON WRIT OF ERROR—ASSIGNMENT OF ERROR.
1. The Supreme Court has no authority to decide whether the trial court erred in directing a verdict, when there is no special assignment of error upon such direction.
2. On the trial of an action brought by a trustee in bankruptcy to recover an alleged preferential payment claimed to have been made with the intention to hinder, delay, and defraud creditors, there was evidence that the payment was made, not with such intention, but bona fide, in satisfaction of a just debt secured by an unrecorded mortgage, and that there were no other lien creditors, and it did not appear that any of the creditors extended credit after the date of the mortgage. Held, that a verdict for the defendant was not without evidence to support it.
(Syllabus by the Court.)
Error from City Court of Bainbridge.
Action by B. C. Dickenson, trustee, against D. D. Stults. Judgment for defendant, and plaintiff brings error. Affirmed.
A. L. Townsend, for plaintiff in error.
Albert H. Russell, for defendant in error.
On November 10, 1899, Miss I. T. Babbitt purchased from D. D. Stults his mercantile business in Bainbridge, giving him for the purchase price thereof her 19 promissory notes of $100 each, one due on the 10th of each month, beginning January 10, 1900; and at the time of the purchase she agreed to give him a mortgage on a house and lot in Bainbridge to secure the payment of the notes. On December 20, 1899, she executed and delivered to him the mortgage, which was never recorded. On October 27, 1900, she sold the stock of goods to C. C. Cliatt for $3,000 cash, which was a fair price. On the same day she paid Stults $1,080 in satisfaction of what she owed him on the notes given for the goods, and the mortgage was surrendered. The balance of the proceeds of such sale she on the same day appropriated to the payment of some other debts. She owed at the time about $6,000, of which $400 was by note to W. C. Bradley & Co., upon which note she paid nothing. Her property consisted of the stock of goods, the house and lot, which was worth from $1,000 to $1,200, and store accounts valued at $500 or $600. On February 16, 1901, W. C. Bradley & Co. et al., creditors of Miss Babbitt, filed a petition in bankruptcy against her, and she was adjudicated a bankrupt February 14, 1902. B. C. Dickenson, as trustee of the bankrupt, brought suit against Stults to recover the sum of $1,080, alleging that under the national bankruptcy act it was a preferential payment, and made for the purpose of hindering, delaying, and defrauding other creditors. The suit resulted in a verdict for the defendant. Plaintiff moved for a new trial, which was refused, and he excepted.
1. The only grounds of the motion for a new trial were that the verdict was (1) "contrary to evidence, and without evidence to support it"; (2) "decidedly and strongly against the weight of the evidence"; and (3) "contrary to law and the principles of justice and equity." The bill of exceptions recites that "upon hearing the evidence in said case the judge of said court directed a verdict in favor of the defendant, " but there is no assignment of error upon such direction, nor is the matter of the direction otherwise referred to in the bill of exceptions. The only assignment of error is upon the order of the court denying a new trial. This court has no authority to decide any question unless it is made by a special assignment of error in the bill of exceptions. Civ. Code 1895, § 5584; Linder v. Whitehead, 116 Ga. 206, 42 S. E. 358; English v. Hill, 116 Ga. 415, 42 S. E. 717; Kelly v. Strouse, 116 Ga. 872, 43 S. E. 280 (9). It follows that under the assignment of error made in this bill of exceptions we are not authorized to decide whether the court erred in directing the verdict.
2. The only question presented by the assignment of error made is, was there any evidence to authorize the verdict? Prior to the amendatory act of 1903, section 60 of the national bankruptcy act of 1898 read as follows: "(a) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class, (b) If a bankrupt shall have given a preference, within four months before the filing of a petition, or after the filing of a petition, and before the adjudication, and the person receiving it or to be benefited thereby or his agent acting therein had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person." Act July 1, 1898. c. 541, § 59, 30 Stat. 561, 562 [U. S. Comp. St. 1901, p. 3445]. Section 67e of the act (30 Stat. 564, 565 [U. S. Comp. St. 1901, p. 3450]) provides: "That all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration, " etc. It has frequently been held that the word "transfer, " as used in the act, includes the payment of money. Collier on Bankruptcy (3d Ed.) 421. The burden was upon the plaintiff to prove all of the essentials of a preferential transfer as defined by the act. If it be granted that the evidence required a finding that all the other elements of a preferential transfer were present in this case, we think it clear that the jury were authorized to find that it was not shown that the effect of the transfer was to enable one creditor to obtain a greater percentage of his debt than any other creditor of the same class....
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Farlow v. Brown, 17629
...as if the jury had returned a verdict upon the evidence. Code, § 110-104; Webb v. Hicks, 117 Ga. 335(5), 43 S.E. 738; Dickenson v. Stults, 120 Ga. 632(1), 48 S.E. 173; Hightower v. Hightower, 159 Ga. 769(9), 127 S.E. 103; Gilliard v. Johnston & Miller, 161 Ga. 17(1), 129 S.E. 434; Tyson v. ......
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Skinner v. Elliott
...to be due and unpaid." This does not raise any point as to the failure of the court to submit the question to the jury. Dickenson v. Stults, 120 Ga. 632, 48 S. E. 173; Rosenblatt v. State, 2 Ga. App. 650, 58 S. E. 1107; Arnold v. Ragan, 5 Ga. App. 254, 62 S. E. 1052; Gay v. Peak, 5 Ga. App.......
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Jackson v. Crutchfield
...bill of exceptions, is made upon such direction; and that the general grounds of a motion for new trial do not suffice. Sec Dickenson v. Stults, 120 Ga. 632, 48 S.E. 173; Bosworth v. Nelson, 172 Ga. 612, 158 S.E. 306, and cit.; Beall v. Mineral Tone Co., 167 Ga. 667, 668, 146 S.E. 473, and ......
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Cole v. Ill. Sewing Maoh. Co
...assignment of error as to the direction of the verdict. This point is expressly ruled against him by the Supreme Court in Dickenson v. Stults, 120 Ga. 632, 48 S. E. 173, where it is held that "the Supreme Court has no authority to decide whether the trial court erred in directing a verdict ......