Holmes v. J. Simon & Co.

• Decision Date: 08 January 1894
• Citation: 71 Miss. 245,15 So. 70
• Parties: G. W. HOLMES v. J. SIMON & CO
• Court: Mississippi Supreme Court

15 So. 70

71 Miss. 245

G. W. HOLMES v. J. SIMON & CO

Supreme Court of Mississippi

January 8, 1894

FROM the circuit court of Leflore county, HON. R. W. WILLIAMSON Judge.

Appellees J. Simon & Co., sued out an attachment against T. C. Garrott and caused the same to be levied on a stock of merchandise and on certain mules, horses and other personal property which Garrott had transferred to G. W. Holmes. The latter interposed his claim, and gave bond for the property. The main ground of attachment is that Garrott had assigned or disposed of the property to Holmes with intent to defraud his creditors. The issue as to this, arising on the plea in abatement bye the defendant, was tried and found for the plaintiffs, and the case as now presented by the record arises out of trial of the claimant's issue, and presents the single question, whether, under the evidence, the transfer from Garrott to Holmes should be set aside an fraudulent as to the creditors of the former. The trial resulted in a peremptory instruction for the plaintiffs, and claimant appeals.

The testimony submitted in behalf of both plaintiffs and claimant is voluminous, and is largely conflicting, and, in the view taken by the court, is unimportant, except as having elicited the announcement of a rule for determining when a peremptory instruction may properly be given.

Reversed, and remanded for a new trial.

S. R. Coleman, for appellant.

It was error to give the peremptory instruction. The question as to the bona fides of the sale should have been submitted for determination by the jury.

Southworth & Steven, on the same side.

B. G. Humphreys and Rush & Gardner, for appellees.

A careful review of the evidence will show that the action of the court below should be approved. A verdict for the claimant in that court would not have been permitted to stand, and it was therefore proper to grant a peremptory instruction. 62 Miss. 534; 70 Ib., 340.

OPINION

CAMPBELL, C. J.

The peremptory instruction should not have been given. When "the evidence is sufficient to warrant a verdict for the plaintiff (or other party) in any view of it which might be legally taken," a peremptory instruction to find for the other party cannot properly be given. Railroad Co v. Boehms, 70 Miss. 11, 12 So. 23. It will not do for the judge to take the case from the jury and decide it himself, simply because he thinks it should be decided that way. It is...