First National Bank of Adrian v. Allison
| Decision Date | 21 May 1923 |
| Citation | 251 S.W. 475,213 Mo.App. 677 |
| Parties | FIRST NATIONAL BANK OF ADRIAN, MO., Appellant, v. FRED ALLISON, Defendant, BEN ALLISON, Interpleader, Respondent |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Bates County.--Hon. C. A. Calvird Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Silvers & Silvers for appellant.
DeArmond & Maxey for respondent.
This is an action for money loaned by plaintiff to defendant.
The record shows that the Allisons, father and two sons, moved from Nebraska to Bates County, Missouri, a few years prior to the occurrences which form the basis of this suit. The father, I. F. Allison, and the son Ben Allison, purchased farm land there, and the defendant, Fred Allison, became a tenant of the Scullys, large landowners in Bates County, and engaged in farming and stock raising. Defendant owned no lands in Bates County with the exception of a half interest in forty acres which he and his brother Ben purchased and owned. In the conduct of his farm and stock business, defendant borrowed from the plaintiff bank, at various times, sums of money amounting in the aggregate to $ 12,000 or $ 13,000, and in time he became possessed of considerable personal property. The Allisons, father and sons, became depositors in the plaintiff bank and transacted their business through said bank.
Defendant Fred Allison, on one occasion, purchased some cattle at the stock yards in Kansas City. The testimony shows that he did not have the money to pay for them and that his brother Ben advanced the money therefor in the amount of $ 1400, for which he drew his check on plaintiff bank. The cattle were brought to the farm then under lease to defendant and were there being fed. The testimony further tends to show that besides the amount advanced by Ben Allison for the cattle above referred to, defendant owed Ben additional sums, making a total of $ 2300 for which he gave Ben his note and mortgage upon eighty-six head of cattle, including those purchased at the Kansas City stock yards, as above indicated. Defendant also turned over to his father certain articles of personal property in payment of debts owing him. Defendant soon became involved in lawsuits and plaintiff instituted this action.
An attachment was issued to the sheriff of Bates county with instructions to levy on the cattle above mentioned and others then in the custody of defendant. The attachment was brought charging that defendant had attempted to convey his property to his brother Ben and to their father, I. F. Allison, with intent to defraud his creditors. The writ of attachment was placed in the hands of a deputy sheriff, who went to the farm then occupied by defendant and learned that he was absent in Nebraska. He found a young man in charge of the place who stated he was in the employ of I. F. Allison. The deputy sheriff then told the young man that he was levying upon the cattle and some feed and that he would leave the property in his hands to be looked after. Pursuant to an order of the court, thereafter, the cattle were directed to be sold and notices to that effect were posted. Said notices fixed the date of the sale on a Saturday, eleven days thereafter. On Thursday, preceding the date for the proposed sale, Ben Allison, I. F. Allison and the defendant shipped thirty-six head of the cattle to the Kansas City market in the name of Ben Allison, the returns thereof amounting to $ 1437.31, being remitted to Ben Allison and deposited in his name with the Adrian Banking Company.
An affidavit in attachment was filed and a writ of attachment issued and delivered to the sheriff who attached the said funds, and later the Adrian Banking Company was summoned as garnishee. Thereupon Ben Allison filed his interplea herein setting up that the sum of $ 1348.16 of the funds attached was his, and never was the property of Fred Allison, the defendant, and was not subject to attachment for the payment of his debts.
The answer of plaintiff to this interplea was, first, a general denial and as further answer, it is charged that the fund claimed by the interpleader was the proceeds of the sale of certain cattle that had theretofore belonged to defendant, Fred Allison. The reply of the interpleader to said answer denies the matters and things set out therein, and alleges that the interpleader had the right to possession of the said cattle, and also had the right to sell the same and apply the proceeds to the indebtedness of defendant to said interpleader.
The cause was tried to a jury upon the issues raised by the interplea and the pleadings incident thereto, and a verdict was returned in favor of the interpleader. Judgment was accordingly entered. A motion for new trial was overruled and plaintiff appeals.
The first charge of error is that the court should have given a peremptory instruction to find for plaintiff, offered at the close of the interpleader's evidence. It is urged in support of this charge that "all the indicia of fraud were present and manifest in the case possible in fraudulent transactions."
From this statement as a basis, plaintiff proceeds to point out as evidence of fraud, that the brothers Ben and Fred Allison, on the...
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