Heideman-Benoist Saddlery Co. v. Urner
| Decision Date | 08 February 1887 |
| Citation | 24 Mo.App. 534 |
| Parties | HEIDEMAN-BENOIST SADDLERY COMPANY, Appellant, v. URNER & PREWETT, Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Vernon Circuit Court, HON. CHARLES G. BURTON, Judge.
Affirmed.
The case is stated in the opinion.
SCOTT & HOSS, for the appellant.
I. Defendants, by their own testimony, show that their intention was to defeat all foreign creditors, and would fraudulently commit some of the acts specified in the attachment law, authorizing an attachment, in order to enable certain creditors to defeat others, even to the changing of their books of account.
II. Such measures as the defendants admit that they resorted to in this case, to prefer favorite creditors, is a base fraud upon those whom they are endeavoring to defeat.
H. H BLANTON, for the respondents.
I. The testimony in this case shows that there was no real ground for attachment. Defendants committed no act that would authorize an attachment. There was no fraudulent conspiracy between defendants and any of their creditors, but only a preference given to home creditors over foreign, which they had the right to give. Ensworth v. King, 50 Mo. 477; Greely v. Reading, 74 Mo. 309; Gummersell v Hanbloom, 19 Mo.App. 274.
This is an action by attachment. The grounds of attachment alleged in the affidavit are, that defendants are about, fraudulently to conceal, or dispose of their property, etc., so as to hinder and delay their creditors, and that they have fraudulently removed or disposed of their property, etc.
On trial of the issues, on plea in abatement, had before the court sitting as a jury, the issues were found for the defendants.
The evidence showed that defendants were merchants, in saddlery, in the city of Nevada, Vernon county. They became largely indebted, beyond the amount of their assets. Some of their foreign creditors were pressing them for money, and threatening to bring suits against them by attachment. They had several home creditors, among whom were Martin, Taylor and Swan. One of the defendants, Urner, went to Martin, while said foreign creditors were so pressing for their debts, and informed him of the fact that they threatened to attach, and suggested to him that he had better attach first, as they wanted to prefer their home creditors. Martin said he had no grounds of attachment. Urner suggested that he would make grounds. Thereupon Martin did attach.
The evidence tended to show that defendants owed said Taylor about fifty-two dollars, and about this time they advised him to pay himself by taking harness out of the store room, which he proceeded to do, taking some of it out at the front door and others through the back door. Swan was the father-in-law of one of the defendants, and the night before the attachment in question he was advised by the son-in-law that he had better remain in town that night, as their creditors were talking about attaching, and that if they moved in the matter, he should get out an attachment to get in ahead of them, which course he pursued.
The evidence also showed that one Cotton, residing in the country, owed the defendants on account about twenty dollars. On the day of the attachments, or about that time, one of the defendants visited him and requested him to pay the account to them, as they had been attached, and wanted the money to turn over to Thornton's bank, which they were owing. The account book of defendants, also, showed that they had marked this account of Cotton's as having been paid on the day before the attachment. Thornton's bank was, however, a creditor of defendants.
The evidence also tended to show that the evening before the attachments were sued out one of defendants took home with him the pocket book that usually remained in the store. But how much, if any, money, it contained, the evidence failed to show.
There was some other immaterial evidence.
The plaintiff asked, and the court refused, the following declaration of law:
" The court declares the law to be, that, if the defendants were insolvent, and were being pressed by their creditors for the payment of their demands, but that plaintiff did not intend to attach until it ascertained that defendants had an understanding with one Martin, a home creditor, and one Swan, a father-in-law of defendant Prewett, that if the foreign creditors intended to attach that they, defendants, would make grounds for...
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