Goodbar v. Bailey

• Court: Arkansas Supreme Court
• Writing for the Court: HUGHES, J.
• Citation: Goodbar v. Bailey, 22 S.W. 568, 57 Ark. 611 (Ark. 1893)
• Decision Date: 13 May 1893
• Parties: GOODBAR v. BAILEY

22 S.W. 568

57 Ark. 611

GOODBAR v. BAILEY

Supreme Court of Arkansas

May 13, 1893

Appeal from Franklin Circuit Court, Ozark District, HUGH F THOMASON, Judge.

Judgment reversed and cause remanded.

Rose Hemingway & Rose for appellants.

The removal of property from the State by a debtor, not leaving sufficient to pay his debts, is a ground of attachment under our statute. His purpose is immaterial. 44 Ark. 302; 54 id 58; 2 McCrary, 198.

A. S. McKennon, Geo. A. Mansfield and E. H. Mathes for appellee.

The broad ground taken in 40 Ark. 157, that shipping cotton beyond the State in payment of a bona fide debt does not justify an attachment, has not been abandoned in this court. 44 Ark, 302; 54 id. 58; 4 F. 294. See 8 So. Rep. 674.

OPINION

HUGHES, J.

This was an action to recover a matured debt of $ 570. An attachment was sued out on the ground that the defendant had removed some, and was about to remove another, material part of his property out of the State, not leaving enough in the State to satisfy the claims of his creditors; it was levied upon a stock of merchandise and two bales of cotton.

The defendant answered, admitting the debt, and judgment was rendered for it by consent; but he controverted the grounds of attachment, and the issue thereon was tried by a jury.

The plaintiff introduced as a witness W. W. Bailey, the defendant, who testified that, at and before the commencement of this action, he was a merchant engaged in business at Altus; that he owed the plaintiff $ 570, and owed, in all, debts largely in excess of his property; that, prior to the suing out of the attachment, he had shipped from Altus to Hill, Fontaine & Co., at Memphis, thirty-eight bales of cotton, to be sold by them for his account, proceeds to be applied to debts that he owed them; that, on the day when the attachment was levied, he had seven bales of cotton on the platform at Altus, similarly consigned, and for the same purposes as the thirty-eight bales; that said seven bales formed a material part of his property; that he owed Hill, Fontaine & Co. debts in excess of the cotton shipped, which he promised to pay by shipping them cotton. To the admission of the testimony of Bailey as to his being indebted to Hill, Fontaine & Co., and his intention to pay said indebtedness by shipping cotton, the plaintiff at the time objected, but the court overruled the objection, and the plaintiff excepted.

The evidence further shows that Bailey procured advances of money from Hill, Fontaine & Co. in the summer, upon his promise and agreement to ship cotton to pay the debt. He had no authority to draw against the cotton, and his intention at the time of the shipment was to apply the cotton on the debt. He mailed the bills of lading to Hill, Fontaine & Co., at date of shipment of the cotton, with instructions to apply the proceeds of the sale of the cotton to the debt he owed them.

The above is the evidence, according to the abstracts of the testimony by the appellants and appellee, so far as the same is important to understand the opinion.

The plaintiff requested the court to give the following instruction: "(1) It is admitted by the defendant that the debt of the plaintiffs in this action was due and was unpaid at the time the writ of attachment in this cause was sued out. Now, should you find from the evidence that the defendant, W. W. Bailey, was removing or was about to remove a material part of his property out of this State, not leaving sufficient of his, the said W. W. Bailey, in the State to satisfy all the debts of his creditors, then you should find for the plaintiffs and sustain the attachment and this you should find, notwithstanding you may believe from the evidence that the defendant was shipping his property to a commission house in Memphis, Tennessee, with whom he kept an open account, for the purpose of having the said property sold, and the proceeds of same applied to the credit of a bona fide debt defendant owed said commission house." Which instruction the court...