Kahmke v. Weber

• Decision Date: 02 February 1915
• Docket Number: No. 13436.,13436.
• Citation: 173 S.W. 76
• Parties: KAHMKE v. WEBER.
• Court: Missouri Court of Appeals

173 S.W. 76

KAHMKE v. WEBER.

No. 13436.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

Action by Frederick Kahmke against Anton Weber, in which Theodore Guemmer and others filed an interplea. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John V. Noell and Charles P. Noell, both of Perryville, for appellant. M. A. Dempsey, of Cape Girardeau, and Killian & Bond, of Perryville, for interpleaders Hanny and Cape Brewery & Ice Co.

NORTONI, J.

This is a suit by attachment. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

The subject-matter levied upon under the writ of attachment is a stock of wines, liquors, cigars, and other goods and supplies in a saloon or dramshop situate in Perryville. The suit was instituted on the 17th day of January, 1911. It appears that 10 days before the institution of the suit — that is, on January 7th — defendant executed a chattel mortgage on the stock of goods involved to Theodore Guemmer, Jos. R. Cissell, and Fritz Behrle to secure a promissory note for $360. The mortgage provides, among other things, that the defendant mortgagor should continue in possession of the stock of goods until default, when the property might be sold according to the power for that purpose conferred in the instrument. Among other things, the mortgage provides, too, that the mortgagor "may continue to use and sell said stock of goods, and if the same is sold privately, as a whole, the proceeds are to be applied in payment of the hereinafter described note." On January 16, 1911 — that is, the day before the institution of the suit — defendant also executed a bill of sale whereby he conveyed or attempted to convey to one Otto Hanny the entire stock of goods consisting of wines, liquors, cigars, etc., in the saloon in consideration of $1, and it is said that Hanny was given possession of the property before the suit was instituted. Otto Hanny was the sales agent at the time of the Cape Brewery & Ice Company, and it appears defendant was indebted to that concern in the sum of several hundred dollars; but this fact is not mentioned in the bill of sale, neither is the brewery company. The grounds of the attachment set forth in the affidavit are:

"That the defendant has fraudulently conveyed and assigned his property and effects, so as to hinder and delay his creditors; that the defendant has fraudulently concealed, removed, and disposed of his property and effects so as to hinder and delay his creditors; that the defendant is about fraudulently to convey and assign his property and effects, so as to hinder and delay his creditors; and that the defendant is about fraudulently to conceal, remove, and dispose of his property and effects, so as to hinder and delay his creditors."

The defendant interposed a plea in abatement to the grounds of attachment thus stated, and on April 10, 1911; and thereafter, during the same term of the court on April 15th, Theodore Guemmer, Jos. R. Cissell, and Fritz Behrle, the mortgagees in the chattel mortgage above referred to, filed their interplea in the cause claiming the property attached under their chattel mortgage. On the same day, April 15, 1911, the Cape Brewery & Ice Company and Otto Hanny were allowed time in vacation to file their interplea claiming the same property under the bill of sale to Otto Hanny. Thereafter, on September 14th, the Cape Brewery & Ice Company and Hanny filed their interplea in the case according to the leave theretofore granted. Plaintiff pleaded in due time to both of the interpleas above mentioned.

On October 10, 1911, the case came on for hearing, and the plaintiff answered ready for trial on either or both of the interpleas above referred to; but the court denied his request and required the issue between plaintiff and defendant on the affidavit in attachment and the plea in abatement to be first tried. To this course of proceeding plaintiff objected and excepted and insisted on his right to first contest the issue with the interpleaders. It is urged the court erred in requiring plaintiff to proceed to try the issue on the affidavit in attachment and the plea in abatement in advance of those arising on the interpleas. The statute (section 2345, R. S. 1909) provides that any person claiming property attached may interplead in the cause and...