First Nat. Bank v. Brenneisen

• Decision Date: 18 February 1889
• Citation: 97 Mo. 145,10 S.W. 884
• Court: Missouri Supreme Court
• Parties: FIRST NAT. BANK OF CLINTON v. BRENNEISEN.

10 S.W. 884

97 Mo. 145

FIRST NAT. BANK OF CLINTON v. BRENNEISEN.

Supreme Court of Missouri.

February 18, 1889.

1. PARTNERSHIP — FIRM AND INDIVIDUAL CREDITORS — ATTACHMENT.

A., being indebted to plaintiff, formed a partnership, and transferred his stock of goods to the firm, and the latter then bought new stocks, with which the old was intermingled. Plaintiff afterwards attached part of the goods in the hands of A., but there was no evidence that the latter had become the owner thereof, as his individual property, or that the partnership had been dissolved, except that of one witness, who had been clerking for the firm. No notice of such dissolution was given, and goods purchased by the firm continued to be received and mingled with the partnership stock. Held, that the goods attached by plaintiff were partnership property, and that plaintiff's claim should be postponed to the claims of subsequently attaching creditors of the firm, the latter having become insolvent.

2. ATTACHMENT — APPOINTMENT OF RECEIVER — DISTRIBUTION OF PROCEEDS.

Under Rev. St. Mo. §§ 427, 430, 439, providing for the appointment by the court of a receiver when goods are seized on attachment, and that such receiver shall report his proceedings to the court, and for the proceedings in such cases, the circuit court has power to fix the priorities between several attaching creditors, and distribute the fund arising from the sale of the attached property.

Appeal from circuit court, Henry county; JAMES B. GAUTT, Judge.

The First National Bank of Clinton appeals from a judgment postponing an attachment levied by it on property in the hands of its debtor, C. H. Brenneisen, to attachments by creditors of the firm of Brenneisen & Goff, of which C. H. Brenneisen was a member. Rev. St. Mo. §§ 427, 430, 439, cited in the opinion, provide that in attachment proceedings the court may, on application, appoint a receiver, who shall, when required, report his proceedings to the court, and also provide for the proceedings in such cases, and for granting an appeal from the court's decision.

R. E. Lewis and W. S. Shirk, for appellant. A. Haynie and S. E. Price, for respondent.

BRACE, J.

This is a controversy between the plaintiff, who is an individual creditor of C. H. Brenneisen, who is named the respondent, and certain creditors of Brenneisen & Goff, a firm of which the said C. H. B. was a member. The plaintiff, on the 5th of February, 1885, in an action commenced by him in the circuit court of Henry county against C. H. Brenneisen, sued out a writ of attachment, and caused the same on that day to be levied on a stock of goods then in the possession of said Brenneisen, in McBeth's building, in the city of Clinton, in said county. Subsequently a number of the creditors of Brenneisen & Goff, some on the same day, some on the next, and some several days thereafter, in actions commenced in the same court, severally sued out writs of attachment, and caused them to be levied upon the same goods as the property of said firm. Afterwards, on the petition of the plaintiff and the other attaching creditors, a receiver was appointed, the goods sold, the proceeds received and held by the receiver, subject to the order of the court. In the mean time all the attaching creditors obtained final judgment in their several actions, whereupon the plaintiff filed its motion in said court, praying for an order directing the receiver to pay plaintiff out of the proceeds of the sale of said attached property the amount of his judgment, interest, and costs, as a prior attaching creditor, and at the same time the attaching creditors of the partnership firm of Brenneisen & Goff filed their motion, claiming that the property seized and sold was the property of said firm, and subject to the payment of the partnership debts, to the exclusion of the individual debts of the members of the firm, and praying...