Holloway v. Dunham, 247

• Decision Date: 23 May 1898
• Docket Number: No. 247,247
• Citation: 170 U.S. 615,18 S.Ct. 784,42 L.Ed. 1165
• Parties: HOLLOWAY v. DUNHAM et al
• Court: U.S. Supreme Court

170 U.S. 615

18 S.Ct. 784

42 L.Ed. 1165

HOLLOWAY

v DUNHAM et al.

No. 247.

May 23, 1898.

This action was brought in a district court of the territory of Oklahoma to recover the value of certain goods sold and delivered by the plaintiffs (defendants in error here) to the defendant below, amounting to the sum of $5,004.58; the sales having been made between the 1st of November, 1890, and the 10th of March, 1891, and the defendant at the time of the sales being a resident of Ft. Worth, in the state of Texas. At the time of the commencement of the action, plaintiffs also commenced attachment proceedings against the defendant on the ground that he was at that time a nonresident of the territory of Oklahoma, and also on the ground that he was about to sell, convey, and otherwise dispose of his property subject to execution, with a fraudulent intent to cheat, hinder, and delay his creditors.

The defendant filed an answer denying the plaintiffs' complaint, and also one denying each and every material allegation contained in the plaintiffs' petition and affidavits for an attachment.

Under the practice in Oklahoma, there were two issues thus made,—one in regard to the existence and amount of defendant's indebtedness to the plaintiffs, and the other as to the facts upon which the attachment could be sustained. These two separate issues came on for trial on the 16th of June, 1892, before the district court and a jury; and, after the evidence was in, the court submitted to the jury the two issues, and directed a separate verdict to be returned in regard to each issue. The jury returned the following verdicts:

'We, the jury, duly impaneled and sworn in the above case, find for the plaintiffs on the attachment issue. Eugene Walker, Foreman.'

'We, the jury, duly impaneled and sworn in the above-entitled case, find for the plaintiffs, and assess their damages at $5,434.61. Eugene Walker, Foreman.'

At the request of the defendant the court also submitted to the jury the following questions in writing:

(1) 'Was J. R. Holloway on the 31st day of October, 1891, about to sell and convey, or otherwise dispose of, his property subject to execution, with the intent to cheat, hinder, and delay his creditors?'

(2) 'Was J. R. Holloway on the 31st day of October, 1891, a nonresident of Oklahoma territory?'

The jury returned an affirmative answer to each question. Judgment was entered for the amount of the verdict.

The defendant appealed to the supreme court of the territory, where the judgment was affirmed (41 Pac. 140) and thereupon he obtained a writ of error from this court, and the record is now here for review.

Fred Beall, for plaintiff in error.

Selwyn Douglas, for defendants in error.

Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

This is a very confused record. There would seem to be two bills of exceptions,—one containing the evidence, and the other reciting certain exceptions, but containing no part of the evidence taken upon the trial. Both seem to have been signed by the judge who tried the case, while neither purports to have been signed by him until months subsequent to the day of trial.

The bill of exceptions containing the evidence is the first bill set forth in the record, and the other bill follows it. It is not material here which bill may be regarded as the regular one, because, on an appeal from the supreme court of a territory, we cannot examine the evidence, as to its weight or sufficiency, and the findings of fact are conclusive upon this court. Harrison v. Perea, 168 U. S. 311, 18 Sup. Ct. 129, and cases cited.

There are left only the exceptions to rulings on the admission or rejection of evidence, and those taken to the instructions of the court to the jury. The former are not particularly urged, and the latter are substantially confined to two. They arise upon the instructions of the court to the jury in regard to what is sufficient proof of nonresidence, and also as to the number of the jury necessary to agree upon a verdict.

The jury found for thep laintiffs on the attachment issue, and also for the plaintiffs in the main action, and assessed their damages at $5,434.61. In addition to that, the jury found that the defendant on the 31st of October, 1891, was about to sell and convey, or otherwise dispose of, his property subject to execution, with the intent to cheat, hinder, and delay his creditors, and also that on the 31st day of October, 1891, he was a nonresident of Oklahoma territory.

Without at this moment considering whether the exceptions taken to the charge of the judge were sufficiently and properly taken, we think it is not material now to inquire as to the correctness of the charge of the court in relation to the question of defendant's nonresidence. If he were a nonresident when the attachment was issued, it could be sustained on that ground. But it could also be sustained if at the time it was issued the defendant was about to sell and convey, or otherwise dispose of, his property subject to execution, with the intent to cheat, hinder, and delay his creditors. So there were two facts, entirely separate and distinct from each other, either of which,...