Jaffray v. The H. B. Claflin Company
| Decision Date | 23 December 1893 |
| Citation | 24 S.W. 761,119 Mo. 117 |
| Parties | Jaffray et al., Appellants, v. The H. B. Claflin Company |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
B. U Massey and Sebree & Tatlow for appellants.
(1) The dismissal of an attachment suit ipso facto dissolves the attachment and releases the lien. 1 Wade on Attachment, p 407, sec. 218; Smith v. Whitfield 2 S.W. (Tex. Sup Ct.) 822; Hall v. Wallbridge, 2 Aiken's Rep. 215; Brandon Iron Co. v. Gleason, 24 Vt. 228; Drake on Attachment, sec. 415, foot p. 314; Johnson v. Edson, 2 Aiken's Rep. 299; Harlow v. Lyon, 3 Iowa (Green) 157; Brown v. Harris, 2 Iowa (Green) 505; Suydam v. Huggeford, 23 Pick. 465; Stone v. Miller, 62 Barber, 430; Allen v. Mayers, 2 Tenn. Ch. 206; Murray v. Eldridge, 2 Vt. 388; Cole v. Woster, 2 Conn. 203; Page v. Jewitt, 46 N.H. 441. (2) If the first attaching creditor dismisses his suit, but afterwards, with the consent of the defendant, obtains leave of court to reinstate it on the docket, such reinstatement cannot have the effect of restoring his property as against a subsequent attachment. Murphy v. Crow, 38 Ga. 139; Brown v. Harris, supra; Harlow v. Lyon, supra. (3) An attachment lien once lost can never be restored. Brown v. Harris, supra; Harlow v. Lyon, supra; and other authorities, supra. (4) The rights and priorities of attaching creditors, as between themselves, are matters of strict law. If the first attacher once loses his lien, the rights of the junior attachers intervene, and their lien then takes precedence, and this without regard to the good faith or bad faith of the parties, so say all the appellate courts of this state. Co. v. Blank, 49 Mo.App. 60; Adler v. Anderson, 42 Mo.App. 189; Bank v. McDonald, 46 Mo. 31; Gilbert v. Gilbert, 33 Mo.App. 259. (5) It is universally held that subsequent attaching creditors can take advantage of the defects in the proceedings of the prior attaching creditors, which of course means that this appellant can in no way be prejudiced by the fact that Levy & Weinberg did not choose to have this order set aside for want of notice. Bank v. McDonald, 46 Mo. supra; Syone v. Miller, 62 Barber, 434; Allen v. Meyers, 2 Tenn. Ch. 206; Drake on Attachment [7 Ed.], 262; Gilbert v. Gilbert, supra; Pawn v. Davenport, 44 Cal. 441. (6) This is a statutory proceeding and is a substitute for a bill in equity, and the statute evidently contemplates a hearing and determination of this matter by the court, without the intervention of a jury. Hence, the finding of the trial court on the evidence is not conclusive on this court. Gilbert v. Gilbert, supra; Hensley v. Baker, 10 Mo. 157; Erskine v. Loewnstein, 82 Mo. 301.
Heffernan & Buckley for respondents.
(1) The court properly overruled the application for change of venue. The court, while adjudicating the rights of attaching creditors, could not be sworn off the bench by one less fortunate in procuring a timely attachment, and have a special judge pass on its alleged errors. Shalien v. Gunn, 43 Mo.App. 315; Cocker v. Cocker, 56 Mo. 180. Motions and all preliminary matters must be heard by the judge who presided when they were in any way under judicial investigation. This is too well established to need any authorities. In civil suits the affidavits in support of a motion for change of venue, must be sworn to by the party himself. Levin v. Dille, 17 Mo. 64; Husting v. Maas, 36 Mo. 101; Whitson v. Wilson, 89 Mo. 58. (2) The court had the undoubted right to set aside its order of involuntary nonsuit on the morning of December 9: to correct any irregularity or mistake at any time during term. Rankin v. Lawton, 17 Mo.App. 574; Nelson v. Ghiselin, 17 Mo.App. 663; Ashley v. Glasgow, 9 Mo. 320; Hill v. St. Louis, 20 Mo. 584; Parker v. Johnson, 22 Mo.App. 518. It is conceded by the appellants that the trial court had this right; we cite no further authorities on this subject. (3) When E. S. Jaffray & Co., on the nineteenth day of March, 1891, sued out second writ of attachment and garnisheed the money in the hands of attaching officers after sale of the goods, they lost any lien they may have had under the first attachment which was sued out in December, 1890, and which was returnable in January, 1891. (4) No motion for a new trial was filed, and there is nothing to review except the record proper. The only way to reach errors occurring at the trial is by motion for new trial. Harrison v. Bartlett, 51 Mo. 170; Griffith v. Hanks, 100 Mo. 109; State v. McCray, 74 Mo. 303; State v. Dunn, 73 Mo. 586; Matlock v. Williams, 59 Mo. 105; State v. Preston, 77 Mo. 294; Carlisle v. Keokuk, 82 Mo. 40.
OPINION
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 fourth of 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 fifth, 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 fourth 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 good, one in favor of the H. B. Claflin Co. against Levy & Weinberg, one in favor of the H. B. Claflin Co. 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 Co. The circuit court, in which the suits were commenced, was in session from the fourth to the ninth. On the sixth, seventh and eighth, the judge stated on several occasions that the Claflin Co. and Mr. Hefferman 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 eighth, 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 Co. 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 Mr. 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 case 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 Co. v. Levy.
At the opening of the court on the next morning, the ninth, 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 Co. 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 Claflin & Co. 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 Co. against the firm of Levy & Weinberg as having been duly reinstated, the attaching creditors would have priority in the following order and amounts: The H. B Claflin Co., $ 5,125; Farwell & Co., $ 431; Rothchild & Bro., $ 1,672; Jaffray & Co., $...
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