Mathewson v. Larson-Myers Co.

• Decision Date: 06 December 1919
• Docket Number: No. 2435.,2435.
• Parties: MATHEWSON v. LARSON-MYERS CO.
• Court: Missouri Court of Appeals

217 S.W. 609

MATHEWSON v. LARSON-MYERS CO.

No. 2435.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Rehearing Denied January 17, 1920.

Appeal from Circuit Court, Taney County; Fred Stewart, Judge.

Suit in attachment by R. B. Mathewson against the Larson-Myers Company, H. A. Larson, and W. E. Myers. Attachment sustained as to defendant Larson on plea in abatement, and judgment rendered for plaintiff against both defendants on the merits. From judgment on plea in abatement, defendant Larson appeals, and from judgment on the merits, both defendants appeal. Judgment against defendant Larson on plea in abatement reversed and remanded. Judgment on the merits affirmed.

See, also, 209 S. W. 294.

M. R. Lively, of Webb City, for appellants.

M. Walker, of Branson, and Moore, Barrett & Moore, of Ozark, for respondent.

BRADLEY, J.

Plaintiff sued by attachment to recover from defendants, as a copartnership, an alleged amount for some chops and hay, borrowed money, and on account for work and labor. Upon trials below before the court and a jury the attachment was sustained as to Larson, and judgment rendered in favor of plaintiff and against both defendants on the merits for the sum of $525, and defendant Larson appeals from the judgment on the plea in abatement, and both defendants appeal from the judgment on the merits. We will consider separately the questions raised in the appeal on the plea in abatement and on the merits.

On the plea in abatement: This cause was here in Mathewson v. Larson-Myers Co., 209 S. W. 294, where a motion to dismiss the appeal was disposed of. Plaintiff filed his petition on February 10, 1917, and on the same day filed his affidavit for an attachment based on the tenth ground in section 2294, R. S. 1909, in which affidavit it is alleged that the defendant H. A. Larson was about fraudulently to conceal, remove, or dispose of his property or effects so as to hinder or delay his creditors. It is not clear that plaintiff alleges any ground for attachment against Myers, although it is stated as a kind of preliminary in the affidavit that Myers was a resident of Iowa, but the proof showed him to be a resident of Kansas City. Under the writ issued considerable personal property in Taney county belonging to Larson was seized. Both defendants appeared and filed separate pleas in abatement denying the allegations in the affidavit for attachment. The court directed a verdict in favor of Myers on the plea in abatement, and, refusing Larson's request for a peremptory instruction, submitted the issues raised by his plea in abatement to the jury. In disposing of the appeal from the judgment on the plea in abatement, our use of the word "defendant" refers to Larson, unless otherwise noted. Defendant makes many assignments and complaints, but in our opinion the disposition of the assignment based on the sufficiency of the evidence will dispose of the questions raised in the appeal from the judgment on the plea in abatement. We might say here that this record is somewhat irregular; but this may be due to the confusion which arose because Larson attempted to appeal from the judgment on the plea in abatement without waiting for the disposition of the cause on the merits; and notwithstanding the irregularities and confusion we will consider the appeal on its merits.

It appears from the evidence that the defendants, under the firm name of Larson-Myers Company, installed and operated for a time an ice plant in the town of Branson, in Taney county. This plant was installed in 1914, and plaintiff began working for the firm in June, 1914, at $50 per month. To support the grounds for attachment alleged in the affidavit against Larson, plaintiff testified that as constable and deputy sheriff he knew of attachments and judgments, but how many, and whether against the partnership or against the individuals, and the amounts, character of the judgments, and disposition, does not appear, except that one judgment mentioned was against the partnership for something concerning the ice plant. Plaintiff also testified that Larson had a public sale and sold "pretty near all the stuff he did have"; but when this sale occurred and just what was sold does not appear. There was evidence also that Larson had some time before the attachment, but how long before does not appear, sold some hogs, which brought $80; and it is not shown what disposition was made of the proceeds; just the fact that Larson sold a load of hogs in Branson "some time" before the attachment. Plaintiff testified over Larson's objection and exception that defendant Myers told him that, "if I wanted to get the money, I had better run an attachment on Larson's stuff, because he was getting rid of it, and he had beat him out of everything he had, and was trying to get mine, and, if I wanted to get my money, I had better run an attachment on his partner's stuff." Plaintiff attempted to prove that Larson's tenant gave him, in substance, the same advice and information that Myers had given. Neither of these conversations was in the presence of Larson. Also there was some evidence about a confession of judgment. This was brought out on the cross-examination of Myers, but whether this was a confession of judgment against the partnership or against Myers individually does not appear. Neither does it appear when the confession of judgment took place, nor the amount of the judgment. Nothing appears except that plaintiff's counsel seems to have exhibited a paper to Myers when he was on the stand, and from the record it would appear that this paper was a written confession of a judgment. Larson at the time of the attachment lived in Webb City, in Jasper county, but spent some of his time at and near Branson, in Taney county, and owned considerable property in and about Branson. He testified that on the date the writ of attachment was issued he owned 523 acres of land in Taney county and an interest in an ice plant, besides some personal property; that his real estate holdings above incumbrances in Taney county amounted to about $19,000, and that his personal property in Taney county amounted to about $3,000. He also testified that he owned considerable property in South Dakota, Nebraska, and Iowa; that his property holdings outside of Taney county above incumbrances was about $12,500. It does not appear whether there were liens on the personal property held by defendant in Taney county. Plaintiff rested his case on the proposition that Larson's conduct in selling his property together with other attachments and judgments justified the attachment.

The fact that Larson may have been solvent, however, will not defeat the attachment. When a debtor is about fraudulently to conceal, remove, or dispose of his property, or has so disposed of his property and effects, it is not a complete defense in attachment that he has other property out of which the attaching creditor might make his debt. Discussing the question of solvency, and its effect in attachment proceedings, the Kansas City Court of Appeals, in Bank v. Lumber Co., 59 Mo. App. loc. cit. 322, said:

"Issues arising on pleas in abatement have been determined in the courts without reference to the solvency or insolvency of the fraudulent grantor. Such a construction would lead to this, that a creditor would in all cases of fraudulent conveyance or concealment stand by until he ascertained that the conveyances had reached the point of insolvency. In other words, under the seventh, eighth, ninth, and tenth causes for attaching there can be no attachment, under this view, except the debtor is insolvent. Insolvency would thus be the chief hazard to be run by the attaching creditor, and would become the chief issue in the great body of attachment cases. So that, instead of proving the specific fraudulent conduct of the debtor with reference to his property, the creditor would be compelled to go into the delicate measurement of values of assets as compared with the total indebtedness of the fraud feasor, and, if the balance should Turn in favor of the assets, the creditor would be mulct in damages to his fraudulent debtor. Whenever a debtor fraudulently conveys or conceals his property, he is, in theory of law, doing that the tendency of which is to hinder or delay his creditors, notwithstanding he has other property out of which the claim could be made. There is certainly a hindrance as to that part of the property so disposed of and which the creditor had a right to have appropriated (in the absence of voluntary payment by the debtor) to the liquidation of his claim. The scope of the attachment statute shows that it was not enacted with a view of being confined within the limits of insolvent debtors."

To the same effect see National Bank v. Lumber Co., 68 Mo. App. 81; Bank v. Powers, 134 Mo. 432, 34 S. W. 869, 35 S. W. 1132; Noyes et al v. Cunningham, 51 Mo. App. 194; Bowles Stock Co. v. Hunter, 91 Mo. App. 333; Hardware Co. v. Fighting the Flames Co., 135 Mo. App. 266, 115 S. W. 467.

This construction seems to have been generally adhered to in this state so far as we have been able to ascertain. It might seem plausible at first blush that, before an attachment can be sustained under the seventh, eighth, ninth, or tenth ground in our statute, the act of the debtor with reference to his property must have the effect of hindering or delaying. It will be noted that the phraseology with reference to creditors in the fifth and sixth grounds in our statute changes in the seventh, eighth, ninth, and tenth. In the fifth and sixth the forbidden acts must be with the intent to hinder and delay; while in the seventh, eighth, ninth, and tenth the language is so as to hinder and delay....