Keith v. Fink
| Decision Date | 31 January 1868 |
| Citation | 47 Ill. 272,1868 WL 4975 |
| Parties | JOHN M. KEITHv.ISAAC W. FINK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Montgomery county; the Hon. E. Y. RICE, Judge, presiding.
The opinion states the case.
Messrs. BILLINGS & WISE, and Messrs. KINGSBURY & KITCHELL, for the appellant.
Messrs. STUART, EDWARDS & BROWN, and Mr. J. J. PHILLIPS, for the appellee.
Appellee, being a creditor by note of Keith, Lyford & Company, composed of John M. Keith, F. M. Lyford and Charles M. Wool, on the first day of February, 1867, sued out of the office of the clerk of the Montgomery circuit court, a writ of attachment under the act of 1865, amending the general attachment law, on an affidavit then filed by him, that Keith & Lyford, partners, under the name of Keith, Lyford & Co., had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors, and that, within two years prior to filing the affidavit. The writ was levied on the 2d of February, on certain personal property, as the property of John M. Keith, one of the firm. Albert H. Brown and David B. Jackson were summoned as garnishees. The declaration was filed on the 22d of February.
The defendants, for plea, traversed the facts stated in the affidavit, on which issue was joined, a trial had by a jury, and a verdict and judgment for the plaintiff, a motion for a new trial having been overruled.
To reverse this judgment Keith brings the record here by appeal, and assigns several errors upon it.
The principal question arises upon the instructions given for appellee. The refusal to grant a new trial is also alleged as error.
On this point, as there was much evidence heard, and that of the members of the firm themselves, it would be a very clear case indeed, that could justify this court in disturbing a verdict found under such circumstances. It must be made apparent that the jury overlooked some important portion of the evidence, or were so swayed by passion or prejudice, as to do injustice. There is, really, on careful examination of the record, no ground for assuming that the jury did not well consider the testimony, and weigh well the facts. The fraud charged, is one in law, not in fact. The only question is, did the court properly instruct the jury as to the law on the facts. It appears the court gave to the jury all the instructions asked for by both parties, and, as an epitome of the laws, when taken and considered together, no serious objection is shown to exist to them as such, though one or more of the instructions for the plaintiff, standing isolated, might have misled the jury.
The law of the case was fully stated in the tenth instruction for the plaintiff, and in the eighth given on behalf of the defendant.
The controversy was as to the bona fides of the assignment of this firm. The counsel for the plaintiff contended that by the assignment, the firm assets were appropriated to the payment of the individual debts of the partners.
The court, on this point, gave for plaintiff the tenth instruction. as follows:
“The court instructs the jury, on the part of the plaintiff, that the debts named and provided for by the deed of assignment as due to Davis, Haskell & Co., upon the note of Keith & Miller, and the note of D. B. Jackson, signed by Lyford and Wool, are shown prima facie by the deed...
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