Jewett v. Downs

• Decision Date: 01 September 1894
• Citation: 60 N.W. 76,6 S.D. 319
• Parties: JEWETT et al. v. DOWNS et al.
• Court: South Dakota Supreme Court

6 S.D. 319

60 N.W. 76

JEWETT et al.

v.DOWNS et al.

Supreme Court of South Dakota.

Sept. 1, 1894.

Syllabus by the Court.

A debtor in failing circumstances may pay or secure one creditor to the exclusion of others. Comp. Laws, § 4654. Manufacturing Co. v. Max (S. D.) 58 N. W. 14, followed, which overrules Straw v. Jenks, 43 N. W. 941, 6 Dak. 414.

Appeal from circuit court, Miner county; D. Haney, Judge.

Action by Rollin N. Jewett and others, copartners as Jewett Bros. & Jewett, against W. M. Downs and others, for an injunction, for a receiver, and to declare a certain chattel mortgage and bill of sale fraudulent, and in effect to be a general assignment. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.Farmer & Farmer and J. W. Jones, for appellants. C. A. Crissey and A. E. Chamberlain, for respondents.

FULLER, J.

The object of this action was to obtain an injunction, and the appointment of a receiver authorized by the court to take possession of, and distribute for the benefit of creditors generally, a stock of merchandise described in a certain chattel mortgage executed by the defendant Daugherty to the defendant Downs, and also described in a bill of sale, of even date therewith, executed by said defendant Daugherty to the defendant Oleson, and to procure a decree adjudging the various transactions described in the complaint fraudulent, and in effect to be a general assignment for the benefit of all the creditors of the defendant Daugherty. On the ground that the complaint does not state facts sufficient to constitute a cause of action, an objection to the introduction of any evidence thereunder was made and sustained at the commencement of the trial. From a judgment against the plaintiffs, and in favor of the defendants, for costs, and from an order overruling a motion for a new trial, plaintiffs appeal.

The complaint states, in substance, that the defendant Daugherty was engaged in the retail mercantile business on the 3d day of January, 1893, and prior thereto; that he was in failing circumstances, and indebted to plaintiffs, for goods, wares, and merchandise, in the sum of $233.83; that said defendant, on the above-mentioned date, executed a chattel mortgage covering his entire stock in trade, valued approximately at $4,000, to secure an indebtedness of $1,460 in favor of defendant Downs, and on the same date sold said property, subject to this mortgage, to defendan...