Eisenhardt v. Cabanne

• Decision Date: 24 February 1885
• Citation: 16 Mo.App. 531
• Parties: D. F. EISENHARDT, Respondent, v. S. C. CABANNE, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 531

D. F. EISENHARDT, Respondent,

v.S. C. CABANNE, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

R. W. GOODE and A. R. TAYLOR, for the appellant.

L. S. METCALFE, JR., G. M. STEWART, and G. A. FINKELNBURG, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This cause is in most of its features the same as the cause of Stewart v. Cabanne (16 Mo.App. 517). The attachment was levied at the same time, against the same defendant and the testimony adduced by the plaintiff in the trial court in support thereof, is almost identical with that in the former case.

In some of its features, however, this cause is different from the former, and gives rise to questions which require an examination of points raised, beyond those raised and decided in the former case.

The plaintiff's affidavit here stated five grounds of attachment based respectively on the seventh, eight, ninth, tenth, and fourteenth clauses of section 398, Revised Statutes, relating to the intended and executed fraudulent disposition and conveyance of property and to the fact that the debt sued for was fraudulently contracted. The court among other things, instructed the jury as follows:--

“The court instructs the jury that if they find for defendant as to all the grounds of attachment assigned in plaintiff's affidavit, their verdict must be: We, the jury, find for the defendant on the plea in abatement in this cause. If they find for the plaintiff as to all said grounds, they will in their verdict say: We, the jury, find for plaintiff as to all said grounds alleged in plaintiff's affidavit for the attachment herein, and if they find for plaintiff as to some, but not all of said grounds, they will specify the grounds upon which they find for plaintiff, and then state that they find for defendant as to the other grounds assigned in said affidavit.”

And the jury returned the following verdict: “We, the jury, find for plaintiff as to all the grounds alleged in plaintiff's affidavit for the attachment herein.”

Judgment was thereupon rendered for the plaintiff. While it may be a novel practice in this state, to take the finding of the jury in this manner, it is a practice not only fully warranted by precedent elsewhere, but also commendable, because it enables the trial court to review more fully the correctness of the jury's finding on motion for new trial. Moreover, since a general verdict for the plaintiff would be supported by proof of any of the alleged grounds of attachment ( Tucker v. Frederick, 28 Mo. 574), this practice can not possibly be prejudicial to the defendant.

There was testimony tending to support the grounds of attachment, that the defendant was about fraudulently to dispose of his property, and that he was about fraudulently to convey his property, so as to hinder, etc. This testimony, as in the Stewart case, consisted of his declarations made prior to the attachment, which, as far as they were made to third persons were admissible as declarations against interest, and as far as made to the plaintiff or his agents, on the same ground, and on the additional ground of estoppel. Cocke v. Kuykendall, 41 Miss. 65; Roach v. Brannon, 57 Miss. 490. These declarations were followed by the execution of certain chattel mortgages to his mother, one being executed immediately succeeding the attachment.

It may also be fairly claimed that there was sufficient testimony tending to show an executed fraudulent disposition and conveyance of the defendant's property, with intent, etc., to entitle the plaintiff to go to the jury on that part of his affidavit, under the very liberal rule in this state in regard to the extent of...