Hunter v. Anthony

• Decision Date: 14 January 1922
• Citation: 236 S.W. 412,209 Mo.App. 1
• Parties: LEE HUNTER, Respondent, v. W. O. ANTHONY, Appellant
• Court: Missouri Court of Appeals

236 S.W. 412

209 Mo.App. 1

LEE HUNTER, Respondent, v. W. O. ANTHONY, Appellant

Court of Appeals of Missouri, Springfield

January 14, 1922

Appeal from Pemiscot County Circuit Court.--Hon. Sterling H McCarty, Judge.

AFFIRMED.

Judgment affirmed.

C. G Shepard for appellant.

(1) An attachment cannot issue on a demand not yet due on the ground of the defendant being a non-resident of the State of Missouri. Section 1726, R. S. 1919; Mastin et al. v. The First National Bank of Kansas City, 65 Mo. 16. (2) It was incumbent upon the plaintiff to show fraud in the conveyance made by defendant Anthony to Maxwell, the State Bank Commissioner and failing to show fraud the court should have given defendant's peremptory instructions at the close of all the evidence. Union National Bank of Chicago v. Mead Mercantile Co., 151 Mo. 149; Adler & Sons Clothing Co. v. Corl, 155 Mo. 149; Ernest Wolff Mfg Co. v. Battrael Shoe Co., 192 Mo.App. 113. (3) Where the plaintiff fails to make a case to submit to the jury it is as much the duty of the court to sustain a demurrer or give a peremptory instruction to find for the defendant as it is the duty of the court to submit the case to the jury when sufficient evidence has been offered to make a case for the jury's consideration. Kropp v. Hermann Brewing Co., 138 Mo.App. 49; Gilmore v. Modern Brotherhood of America, 186 Mo.App. 445. (4) Only the defendant is entitled to put in issue the truth of the averments in the affidavit for attachment. Adler v. Anderson, 42 Mo.App. 197. (5) Defendant Anthony having the right to file plea in abatement and contest plaintiff's right of attachment had the right to appeal from the judgment rendered against him, even was his interest no more than that of appealing from the costs. State ex rel. v. Walker, 85 Mo.App. 247; Flannighan v. Hutheson, 47 Mo. 237. (6) Under section 1780, Revised Statutes 1919, all creditors of the defendant by permission of the court could appear and make such defenses as the defendant could make. Inasmuch as only the same defenses could be made by other creditors as could be made by the defendant, what reason is there for the other defendants to be made a party to the record when they can work in conjunction with the defendant and try out with the plaintiffs his right of attachment without complicating the issues.

Oliver & Oliver for respondent.

(1) It would be a most intolerable obstruction to the operation of our courts and a paralyzation of their use if parties having no legal interest in the result of their judgment, order or decree, and not pecuniarily affected thereby, out of a spirit of pure sentiment or suspicion of possible anticipated harm indirectly flowing to them therefrom, should be permitted an appeal and to stay by supersedeas bond the hand of the court until their collateral grievance could be heard in this court. State ex rel. v. Talty, 139 Mo. 379; Sec. 1469, R. S. 1909. Othenin v. Brown, 66 App. 318, 320. (2) The court did not err in sustaining an objection to the question propounded to the witness calling for his conclusion. A witness should state the facts. It is province of the jury to draw conclusions from the facts. Nichols v. Winfrey, 79 Mo. 544, 546; Evans v. Green, 21 Mo. 170.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--This is a suit begun by the respondent in the circuit court of Pemiscot county against the defendant, appellant, on a note for $ 5000, having been executed by W. O. Anthony, the defendant, and one B. H. Wilhite. In aid of this suit an attachment was sued out, and among a number of grounds set up was the seventh ground under the statute, found in section 1725, Revised Statutes of Missouri of 1919, which was that the defendant had fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors. It appears from the record that Anthony owed the plaintiff this $ 5000 note. A judgment was had for that amount on the merits and no appeal was taken therefrom.

Anthony and Wilhite were officers in the Bank of Blytheville, of Blytheville, Arkansas. It appears from the record that they drew out, without any authority of law, large sums of the bank's money and appropriated it to their own use. As a consequence, the bank became insolvent and the State Bank Commissioner of Arkansas took charge of its affairs.

Anthony owned an interest in 280 acres of land situated in Pemiscot county, Missouri, which is the subject of this attachment. A trial was had on the plea in abatement which was filed by Anthony and the cause was submitted to a jury, which found the issues for the plaintiff.

A number of errors are assigned in the trial of the cause, but the view we take of the case made by the documentary evidence and the undisputed evidence of the defendant would require that the court direct a verdict for the plaintiff. Therefore, the assigned errors going to the manner of trying the case are immaterial for a proper disposition of the case.

As stated before, it is shown that defendant Anthony owed the plaintiff, a resident of Missouri, the sum of $ 5000; that Anthony lived at Blytheville, Arkansas, and owned an interest in the land which was attached in this action. There is no room for sustaining the attachment on the ground of defendant not being a resident of the State, the debt not being due. That a deed, absolute on its face, conveying this land was made and delivered by Anthony to a grantee described in the deed as follows: "W. T. Maxwell, State Bank Commissioner in charge of the Bank of Blytheville, Mississippi county Arkansas, his successors in office in charge of said Bank, and assigns." It is shown by the record that...