Jaffray v. H. B. Claflin Co.
| Decision Date | 23 December 1893 |
| Parties | JAFFRAY et al. v. H. B. CLAFLIN CO. |
| Court | Missouri Supreme Court |
Appeal from circuit court, Greene county; W. D. Hubbard, Judge.
Controversy between S. Jaffray & Co. and the H. B. Claflin Company, attaching creditors of Levy & Weinberg, to determine the rights to a fund in the hands of the sheriff. A judgment was rendered declaring that the H. B. Claflin Company had the right to have its claim first settled from the fund, and Jaffray & Co. appeal. Affirmed.
B. U. Massey and Sebree & Tatlow, for appellants. Heffernan & Buckley, for respondent.
This was a proceeding in the Greene county circuit court to settle the rights of attaching creditors to a fund in the hands of the sheriff. The record before us discloses the following state of facts: On the 4th December, 1890, Levy & Weinberg, a firm composed of Moses Levy and Michael J. Weinberg, confessed three judgments in favor of as many banking corporations. On the same day executions were issued on the judgments, and the executions were at the same time levied upon a stock of goods owned by the judgment debtors. At the same time Weinberg commenced a suit against his partner, Levy, for the alleged purpose of dissolving the copartnership. The court, by a consent order, appointed Mr. Delaney receiver of the property and effects of Levy & Weinberg. On the next day — the 5th — the receiver qualified, and the court then made an order directing the sheriff to turn the goods over to the receiver, subject to the lien of the executions. Late in the evening of the 4th, and after the executions had been levied, and while the goods were still in the possession of the sheriff, three attachments were issued, and by the sheriff levied upon the same stock of goods, — one in favor of the H. B. Claflin Company against Levy & Weinberg, one in favor of the H. B. Claflin Company against Moses Levy, and the other in favor of Farwell & Co. against Levy & Weinberg. The Claflin attachments were levied at 9:45, and the Farwell attachment at 10, o'clock in the afternoon. The goods were then in the possession of the sheriff. The Claflin attachments were commenced by Mr. Heffernan, as the attorney for the Claflin Company. The circuit court in which the suits were commenced was in session from the 4th to the 9th. On the 6th, 7th, and 8th the judge stated, on several occasions, that the Claflin Company and Mr. Heffernan were in contempt of court because of the levy of the attachments after the receiver had been appointed. This matter came to a culmination on the evening of the 8th, when Mr. Heffernan asked for a little time to produce authority to show that he was not in contempt, and the court declined to grant the time. Mr. Shelly, the agent of the Claflin Company, was present, and feared his attorney would be humiliated, and the company placed in an unfavorable attitude before the court. In view of all this, he advised Mr. Heffernan to dismiss the Claflin suits. At the same time the judge said to Hr. Heffernan, "You ought to dismiss those suits, and not be in contempt;" and thereupon Mr. Heffernan said, "I will dismiss them, under the circumstances." Thereupon the suits were dismissed; the entry being as follows: "Now comes the plaintiff, by its attorney, and, on the suggestion of the court in regard to the jurisdiction in this case, the property in controversy being in the hands of a receiver, on motion of the plaintiff's attorney, the court orders that said cause be dismissed." Then follows a judgment for costs, which costs were then and there paid by Mr. Shelly. A like dismissal was made in the case of the H. B. Claflin Company against Levy. At the opening of the court on the next morning, — the 9th, — Rothchild & Bro. appeared by their attorney, and asked leave to attach the property in the hands of a receiver, and Jaffray & Co., the plaintiffs in this motion, asked the like leave. The judge, after reading some authorities presented by the attorney of Rothchild & Bro., said: "Before I grant this petition I shall set aside the orders of dismissal made in Mr. Heffernan's cases." Heffernan was then present, representing the interests of his clients, and thereupon the court made the following order in each of the Claflin Company cases: "Now, at this day comes the plaintiff, by attorney, whereupon the court, for good and sufficient reasons appearing, orders that the order made yesterday, dismissing the plaintiff's cause of action, be, and the same is, set aside, and the plaintiff restored to all of its rights as attaching creditor; and the sheriff of Greene county is ordered to make return on the attachment as originally made." The sheriff had not and never did make the change in his levy of those writs. Immediately after making these orders setting aside the dismissals, the court gave leave to Rothchild & Bro. and to Jaffray & Co. to attach, the Rothchild attachment being the prior in point of time. The sheriff then levied these two writs upon the goods, stating in his return that he levied them subject to the executions and the attachments of the Claflin Company and Farwell & Co. Levy & Weinberg filed pleas in abatement in all of the attachment suits; but the pleas were thereafter withdrawn, and the attaching creditors, in due time, obtained judgments. After satisfying the executions, there was in the hands of the sheriff the sum of $6,982. Treating the attachment of the Claflin Company against the firm of Levy & Weinberg as having been duly reinstated, the attaching creditors would have priority in the following order and...
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