Lowenstein v. Caruth

• Decision Date: 10 November 1894
• Citation: 28 S.W. 421
• Parties: LOWENSTEIN et al. v. CARUTH et al.
• Court: Arkansas Supreme Court

28 S.W. 421

LOWENSTEIN et al. v. CARUTH et al.

Supreme Court of Arkansas.

November 10, 1894.

Appeal from Pulaski chancery court; David W. Carroll, Chancellor.

Action by B. Lowenstein & Bros. against G. W. Caruth and another to set aside a conveyance of real estate. From a judgment sustaining a demurrer to part of the complaint, plaintiffs appeal. Reversed.

Morris M. Cohn, for appellants. J. Erb, for appellees.

BATTLE, J.

This was an action to set aside a conveyance of real estate because it was executed with the intent to hinder and delay creditors. Upon this branch of the case the chancery court, finding that the evidence adduced at the hearing was insufficient to show that there was any fraud in the execution of the conveyance, refused to set it aside. We concur with the court in that finding, and in that respect affirm its decree.

But it was instituted for another purpose. The plaintiffs, B. Lowenstein & Bros., stated as follows in their complaint: "That the defendant Simon Cohn, being for a long time prior thereto insolvent, on the 30th day of December, 1890, in view of such insolvency, addressed himself to the defendants Caruth & Erb, attorneys at law, Little Rock, Arkansas, for the purpose of giving him advice and assistance with reference to the disposition of his assets. That as they are informed, believe, and aver, said defendant, under the advice of said counsel, on the 30th day of December, 1890, went into the Pulaski circuit court in suits, or pretended suits, instituted in the names of Caruth & Erb, Eva Cohn, A. Spiro & Co., the Exchange National Bank, Gus Blass & Co., ____ Kumpe, as administrator of the estate of ____ Kumpe, deceased, against him, the said Simon Cohn, in which suits he entered his appearance under the advice of the said attorneys, and consented to judgment. That before the judgments were written up upon the records of the said circuit court, by the consent of the said Cohn executions were issued upon all of said judgments so obtained for the amounts stated therein, which judgments were for the amounts set opposite the respective names as follows: Caruth & Erb, $150; Eva Cohn, $298; A. Spiro & Co., $757.10; Exchange National Bank, $300; Gus Blass & Co., $400; C. H. Kumpe, as administrator, $168.25. That said executions were issued on the 30th day of December, 1890, and placed in the hands of Anderson Mills, as sheriff of Pulaski county, Arkansas, and were by him levied upon the stock of merchandise theretofore owned by the said Simon Cohn at his storehouse on the northeast corner of Markham and Rock streets, in the city of Little Rock. That on the said 30th day of December, 1890, about two hours after the judgments were taken in the names of the parties above named, upon the advice of his said attorneys, the said defendant Cohn confessed judgment in a suit instituted by the complainants in the said circuit court for the amount of their claim, to wit, $2,740, and consented to a judgment being rendered thereon, upon which, by consent, execution was issued, and likewise placed in the hands of the said Anderson Mills, as sheriff of Pulaski county, and was levied upon the said stock. That the said stock of goods is advertised to be sold under said executions upon the 10th day of January, 1891, in bulk on the terms prescribed by law. That, in addition thereto, the said Cohn has notified complainants that he would claim his exemptions out of the said stock on the 10th day of January, 1891. That the inventory valuation of said stock is between $2,700 and $2,800. That the aggregate amount of the claim covered by the judgments rendered as aforesaid, prior to that obtained by complainants, will more than consume the value of the stock, if they are...