Gilbert v. Gilbert

• Decision Date: 18 December 1888
• Citation: 33 Mo.App. 259
• Parties: HERMAN GILBERT, Respondent, v. HENRY GILBERT et al., Appellants.
• Court: Missouri Court of Appeals

33 Mo.App. 259

HERMAN GILBERT, Respondent, v. HENRY GILBERT et al., Appellants.

Court of Appeals of Missouri, St. Louis.

December 18, 1888

Appeal fro the St. Louis City Circuit Court. --HON. GEORGE W. LUBKE Judge.

REVERSED AND REMANDED.

M N. & Lee Sale, for the appellants.

The institution of the attachment suit of Herman Gilbert was an attempt on the part of Henry Gilbert (participated in by Herman Gilbert) to hinder and delay the creditors of Henry Gilbert, and was, therefore, fraudulent and void, even if the alleged debt of Herman Gilbert could be regarded as bona fide and justly due and owing. Henderson v Henderson, 55 Mo. 534; Kuykendall v. McDonald, 15 Mo. 416, 420; Johnson v. Sullivan, 23 Mo. 474; Witz v. Osburn, 2 S.E. 33; Bird v. Aitken, Rice's Eq. [S. C.] 73; Pickett v. Pickett, 2 Hill's Ch. [S. C.] 470. The attachment of Herman Gilbert was instituted with the purpose preconceived by both Gilberts of giving to Henry Gilbert a use in the property attached, or its proceeds, and was therefore void. State to use v Jacob, 2 Mo.App. 183; Smith v. Craft, 12 F. 856; Bank v. Mfg. Co., 6 Stewart [N. J. Eq.] 486; Mitchell v. Sawyer, 115 Ill. 650. The failure of plaintiff to prosecute his attachment to judgment in the manner required by law, and his acceptance of a judgment by confession, not based upon or in conformity with the writ of attachment, operated as a dissolution of his attachment. Bank v. McDonald, 46 Mo. 31; Suydam v. Huggeford, 23 Pick. 465; Stone v. Miller, 62 Barb. [N. Y.] 430; Alley v. Myers, 2 Tenn.Ch. 206; Hall v. Walbridge, 2 Aikens 215; Murray v. Eldridge, 2 Vt. 388; Iron Co. v. Gleason, 24 Vermont 228; Cole v. Wooster, 2 Conn. 203; Drake on Attach. [6 Ed.] p. 250, secs. 262, 282; Waples on Attach. 490 et seq.; 1 Wade on Attach., p. 414, sec. 220; Page v. Jewett, 46 N.H. 441. The writs of attachment and summons were returnable to the April term, 1888. On March 9, 1888, Henry Gilbert filed a stipulation whereby he waived service, entered his appearance to the February term and consented to judgment for the sum of $2,455. This was in effect a confession of judgment, and as such should have been accompanied by the statement and affidavit required by section 3697, Revised Statutes. Failing in this, it was void as to Frankenthal & Bro. Freeman on Judg. [3 Ed.] p. 576, sec. 544; Flanagan v. Bruner, 10 Tex. 257; Schroeder v. Fromme, 31 Tex. 602; Pond v. Davenport, 44 Cal. 482. The defendant entered his appearance to the term preceding that at which the attachment writ was returnable, and thereupon by consent of plaintiff and defendant a general personal judgment was rendered against defendant and execution issued thereon forthwith. The attachment proceedings presented an issue, and there being no adjudication whatever of that issue, the taking of a personal judgment alone was an abandonment of the attachment lien, and the judgment stands as though no attachment had been issued in the cause. Sannes v. Ross, 105 Ind. 558; Smith v. Scott, 86 Ind. 346; Lowrie v. McGee, 75 Ind. 508; Cook v. Love, 33 Tex. 487; Hurst v. Liford, 11 Heisk. 622.

James M. Loring, for the respondent.

Section 447, of the Revised Statutes, under which this proceeding is instituted, gives the court the power " to settle and determine all controversies which may arise between any of the plaintiffs in relation to the property, and the priority, validity, good faith, force and effect of the different attachments." There is no question as to the priority, validity or force and effect of the attachment in which Herman Gilbert was the plaintiff, but the good faith of his said proceeding is questioned. It is also alleged that he abused the process of the court and that therefore his judgment ought to be held null and void. The burden to prove fraud is upon Frankenthal; in other words, they must prove that the debt is not bona fide. The debt being bona fide, it does not matter whether there was a purpose preconcerted by both Gilberts of giving the plaintiff a preference. For under the law of this state, a debtor has the right to prefer one of his creditors to the exclusion of all the others. And he even may make a cause of attachment in order to help such bona-fide creditor in securing such preference through the process of the courts. Saddlery Co. v. Urner, 24 Mo.App. 534. The debt being bona fide, it must follow that the motion cannot be sustained, unless the process of the court was abused in obtaining the judgment. The defendant was duly summoned, and appearing to the action, he consented to an entry of judgment on both the attachment and the debts sued for. The court thereupon entered up a judgment which affected both the property attached as well as any other property then owned by the plaintiff. R. S., sec. 433; Payne v. O'Shea, 84 Mo. 138. And such confession of judgment was not a fraud as against other creditors of the defendant, because it was for a bona-fide debt.

OPINION

PEERS J.

On January 23, 1888, Herman Gilbert sued out of the circuit court of the city of St. Louis a writ of attachment returnable to the April term, 1888, against the property of Henry Gilbert to recover the sum of $2,455, which writ was levied on the contents of two stores owned by said Henry Gilbert, one at 208 North Seventh street, the other at 2840 Market street. Subsequently, on the same day, A. Frankenthal & Bro. sued out of the same court a writ of attachment, returnable to the same term, against the same defendant, for the sum of $925.23, which writ was levied upon the same property. On February, 7, 1888, the property levied on was sold by the sheriff, and the proceeds realized therefrom, after deducting costs and expenses, amounted to $970.98.

On March 9, 1888, defendant Henry Gilbert appeared in court, waived service, entered his appearance to the February term, and consented " that judgment might go against him on the grounds for the attachment, and that plaintiff have judgment for $2,455, and costs." Whereupon the court entered the following judgment in this cause:

" Friday, March 9th, 1888.

Herman Gilbert vs. Henry Gilbert:

And now at this day comes the plaintiff by attorney and comes also the defendant in his own proper person, and said defendant waives service and enters his appearance to the February term, and thereupon said parties submit this cause to the court, and consent and agree that judgment be entered herein in favor of the plaintiff, and against defendant, and for the sum of twenty-four hundred and fifty-five dollars, wherefore it is considered that the plaintiff recover of the defendant the said sum of twenty-four hundred and fifty-five dollars, so consented and agreed to, as aforesaid, together with his costs and charges herein expended, and have therefor execution forthwith."

Whereupon execution was issued forthwith, and delivered to the sheriff of the city of St. La. On the following day, A. Frankenthal & Bro., the second attaching creditors of Henry Gilbert, filed their motion in this case to postpone or dissolve the attachment of Herman Gilbert, alleging as grounds for said motion the following: (1) That the debt claimed by Herman Gilbert is not bona fide; (2) that the attachment based thereon was obtained by collusion between the Gilberts for the fraudulent purpose of giving the debtor, Henry Gilbert, the use and control of the property taken thereunder; (3) that said attachment was not sued out adversely in good faith, but in furtherance of a conspiracy between the Gilberts for the purpose of hindering, delaying or defrauding the bona-fide creditors of said Henry Gilbert, including said Frankenthal & Bro.; (4) that the said Herman Gilbert designedly abused the process of the court, in invoking the process of attachment against Henry Gilbert with the acquiescence and consent of said Henry Gilbert, when in fact no ground existed for the issuance of an attachment, or if such ground existed, the act constituting such ground was done by said Henry Gilbert by the advice and with the connivance of said Herman Gilbert for the purpose of creating a cause for an attachment.

Upon the filing of said motion, execution was stayed till the determination thereof.

Plaintiff filed a denial of the allegations of the motion and the issues thus made up were tried by the court and the motion of Frankenthal & Bro. was thereafter, at the April term, overruled and stay of execution was ordered vacated.

Thereafter at the said April term, 1888, Frankenthal & Bro. prosecuted their suit against Henry Gilbert to judgment on a plea in abatement filed therein, and also to judgment on the merits for the amount sued for by them, to-wit, the sum of $925.23. Thereupon said Frankenthal & Bro. filed their supplemental motion in this suit to postpone or dissolve the attachment of Herman Gilbert, alleging as ground therefor that the action of said Herman Gilbert in taking judgment in this cause, as hereinbefore detailed, was a fraud in law upon said Frankenthal & Bro., and that the lien of the attachment of said Herman Gilbert was thereby waived and released as to them. This supplemental motion was, by consent of parties, heard by the court, and submitted upon proof of the facts therein stated, and was by the court overruled. From the action of the court in overruling the motions of Frankenthal & Bro., they prosecute this appeal.

The writ of attachment was issued on the twenty-third day of January, 1888, returnable to the April term, 1888, of the St Louis circuit court. On the day of its issuance the writ was levied, and on the seventh day of February following, the property was sold. On the ninth of March the defendant appearing in person, waives service and enters his appearance to the February term, agreeing that judgment may be entered against him,...