Murry Nelson & Co. v. Leiter

• Decision Date: 19 June 1901
• Citation: 60 N.E. 851,190 Ill. 414
• Court: Illinois Supreme Court
• Parties: MURRY NELSON & CO. v. LEITER.

190 Ill. 414

60 N.E. 851

MURRY NELSON & CO.

v.LEITER.

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district.

Attachment by Murry Nelson & Co. against Joseph Leiter. From a judgment of the appellate court (93 Ill. App. 176) affirming a judgment in favor of defendant, plaintiff appeals. Affirmed.

Bentley & Burling, Frank P. Blair, and Murry Nelson, Jr., for appellant.

W. W. Gurley, for appellee.

BOGGS, J.

The appellant company sued out of the superior court of Cook county a writ of attachment against the appellee, but, on a hearing before a jury of the issue made under a plea traversing the grounds relied upon to authorize the issuance of the writ, the appellant company was defeated. Upon appeal to the appellate court for the First district, the judgment of the superior court was affirmed. This is a further appeal to this court.

The affidavit which the appellant company filed to entitle it to the writ of attachment, as ground for the issuing of the writ, stated that said appellee ‘has within two years last past fraudulently conveyed or assigned his property so as to hinder and delay his creditors.’ A conveyance of property may be deemed fraudulent, as against creditors, upon two distinct grounds: First, where the conveyance is entered into with the fraudulent intent to hinder and delay creditors; second, where, from the terms of the agreement for the conveyance, or the nature of the transaction, the conveyance is declared fraudulent as a conclusive presumption of law, without regard to the real motives or purposes of the debtor. In the first class of cases the fraudulent intent is always a question of fact to be established by extrinsic proof. In the latter the conveyance is denounced as fraudulent as a legal inference, though the parties may not have been moved by any real design to hinder, delay, or defraud the creditor. This is substantially the language of this court in Lawson v. Funk, 108 Ill. 502. The provision of the attachment act here in question authorizes the issuance of a writ of attachment against a debtor who has been guilty, within two years prior to the filing of the affidavit, of having conveyed his property with the actual fraudulent intent and design of hindering and delaying his creditors. It is not sufficient that he has transferred his property under such conditions or circumstances as that, under the rules of law, the conveyance is deemed conclusively fraudulent as an inference of law, though made without any evil intent. To authorize the seizure of his property by attachment in advance of any adjudication that he is indebted to the plaintiff in the attachment suit, it is necessary it should be proven that within two years prior to the filing of the affidavit he had been guilty of conveying his property with the actual intent and purpose to fraudulently hinder or delay his creditors in the collection of demands against him. If a debtor has intentionally committed such a wrong against his creditors, the law authorizes the seizure of his property by writ of attachment in advance of the rendition of a judgment against him, for the reason it is considered his conduct justifies the apprehension that he will repeat his fraudulent practices to defeat the efforts of his creditors to enforce payment of his debts if allowed to retain control and possession of his property until the claim of the creditors can be judicially investigated, reduced to judgment, and an execution procured wherewith to levy on his property. That the debtor has done or omitted some act, however innocent or inadvertent, from which an inference of fraud, in legal effect, arises, does not justify such apprehension, nor authorize the creditor to invoke the process of attachment. To justify the issuance of an attachment writ on the ground alleged in the affidavit in the case at bar, it must appear that within the period of two years the debtor has purposely and designedly disposed of his property with the fraudulent intent to hinder and delay creditors from seizing it in order to secure payment of judgments or claims against him. Commission Co. v. Druley, 156 Ill. 25, 41 N. E. 48;Wadsworth v. Laurie, 164 Ill. 42, 45 N. E. 435. Whether the appellant company should have prevailed on the issue under the plea traversing the grounds of attachment was a question of fact, as to which we are concluded by the action of the trial and appellate courts, unless error intervened in the ruling of the court during the trial relative to some question of law. Without conceding the contention of the appellant company that the record presents for our decision the question whether, as matter of law, the evidence presented any defense on the issue in attachment, we may remark that the investigation of the testimony which we were called upon to make in order to determine as to the correctness of various rulings of the court otherwise brought in review has demonstrated that it cannot be declared, as matter of law, that the appellee was in fact guilty of actual fraud, as alleged in the affidavit. That was a question of fact, and, under the testimony, was property submitted to the jury.

We cannot consider the contention of the appellant company that in stating the reasons which impelled the trial court to withdraw from the jury a letter which had previously been admitted in evidence over the objection of the appellant company, and in the remarks of the court in overruling the motion of the appellant to direct a verdict in its favor, the court expressed an opinion as to the weight and value of the evidence, and thereby prejudiced the cause of the appellant in the minds of the jury, for the reason no objection was preferred at the time to the action of the court so now complained of, no exception preserved thereto, and no attempt was afterwards made to obviate the effect of such remarks (if they were improper) by an instruction to the jury, or in any other manner. An objection of this character cannot be first mooted in a court of review. Hall v. Bank, 133 Ill. 234, 24 N. E. 546.

A brief reference to the facts is required in order to dispose of objections preferred by the appellant company to the rulings of the court in modifying and refusing instructions asked by the appellant company, and in giving the instructions asked by the appellee: For some time prior to the month of June, 1898, the appellee, Joseph Leiter, had been purchasing enormous quantities of wheat in the markets of Chicago and other cities, and contracting for other large quantities to be delivered in the future, on the boards of trade in Chicago and other cities, with the view of holding the grain, or contracts therefor, in expectation of profiting by an increase in the price of the commodity. On or about the 12th day of June, 1898, it became evident the adventure would not result in a profit, but that great losses must inevitably follow. Money in large sums, entirely beyond the power of the appellee to supply within himself, was demanded as margins to protect his contracts for the purchase of the wheat for future delivery. His father, L. Z. Leiter, had already supplied him with large amounts of money, which he had invested in the enterprise, and his father had also become liable as his indorser and guarantor in still larger amounts. On said 12th day of June said L....