Hosea v. McClure

• Decision Date: 05 October 1889
• Citation: 42 Kan. 403,22 P. 317
• Parties: WILLIAM E. HOSEA et al. v. J. W. MCCLURE et al
• Court: Kansas Supreme Court

22 P. 317

42 Kan. 403

WILLIAM E. HOSEA et al. v. J. W. MCCLURE et al

Supreme Court of Kansas

October 5, 1889

Error from Allen District Court.

PETITION in error to review an order dissolving an attachment. The opinion states the facts.

Judgment affirmed.

Knight & Foust, for plaintiffs in error.

Benton & Scott, and H. A. Ewing, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The only question involved in this case is whether the judge of the district court of Allen county, at chambers, erred or not in dissolving an attachment. The facts of the case appear to be substantially as follows: On August 5, 1886, the defendants, J. W. McClure and William H. McClure, who were merchants doing business under the firm-name of McClure Bros., in the city of Iola, Allen county, and the city of El Dorado, Butler county, were in an embarrassed condition financially, and by agreement with their creditors the time for the payment of their debts was extended as follows: They gave to each of their creditors three promissory notes, each for one third of the debt due such creditor, due in three, six and nine months. The notes were payable at El Dorado, and were placed in the hands of A. L. Redden of that place, who was to collect the same and pay the amount thereof over to the creditors, and the defendants were to continue in their business, paying to Redden all the money that could be spared from their business. At that time the defendants were owing the plaintiffs $ 1,479.78, and each note was for $ 493.26, the first payable on November 5, 1886, the second payable on February 5, 1887, and the third payable on May 5, 1887. The first note was paid by Redden at the time it became due. The second note was not paid when it became due, for the reason that Redden did not have a sufficient amount of money belonging to the defendants with which to pay the same. He had received from the defendants enough to pay all the creditors about 35 per cent. of their second notes, which were then due. He immediately notified all the creditors of these facts, and asked for a further extension of time for payment. Nearly all the creditors agreed to such further extension of time, but the plaintiffs refused to do so. The plaintiffs then withdrew their notes from Redden, and on February 23, 1887, commenced this action in the district court of Allen county against the defendants, upon the second promissory note; or, in other words, the one due on February 5, 1887. On the same day the plaintiffs filed an affidavit for garnishment, for the purpose of garnishing Redden. On March 15, 1887, the garnishment proceedings as to Redden were discharged and vacated by order of the judge of the district court, at chambers. On March 19, 1887, Redden was appointed judge of the twenty-sixth judicial district, and ceased to further act as the trustee of the parties. On March 25, 1887, the defendants filed their answer admitting the execution of the note sued on, but alleging that it was paid. On April 20, 1887, the defendants executed a chattel mortgage on all their goods to Thomas K. Hanna & Co. and others of their creditors, not, however, including the plaintiffs, to secure the amount of $ 9,318.30. On April 23, 1887, the plaintiffs procured an order of attachment in this case upon the following grounds, as stated in their affidavit, to wit:

"That said defendants, J. W. McClure and Wm. H. McClure, are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors, and have property and rights in action which they conceal, and are about to assign, remove and dispose of their property, or a part thereof, with the intent to defraud, hinder and delay their creditors, and fraudulently contracted the debt and incurred the liability and obligation for which the above-named suit has been brought."

Immediately afterward the aforesaid order of attachment was levied upon the defendants' goods as their property, and immediately afterward the goods were replevied by Thomas K. Hanna & Co., and were permitted to remain in the hands of the defendants. On April 26, 1887, the defendants executed a second chattel mortgage upon their goods to others of their creditors, not including the plaintiffs, to secure the sum of $ 5,686.06; and they also about the same time executed a real-estate mortgage to secure still other debts to others of their creditors, not including the plaintiffs.

On May 13, 1887, the defendants filed a motion to dissolve the attachment, the principal grounds for such dissolution being that the grounds set forth by the plaintiffs in their affidavit for their order of attachment were...