Osborne v. Schutt

• Decision Date: 30 April 1878
• Citation: 67 Mo. 712
• Parties: OSBORNE v. SCHUTT, Appellant.
• Court: Missouri Supreme Court

67 Mo. 712

OSBORNE

v.SCHUTT, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Clinton Circuit Court.--HON. GEORGE W. DUNN, Judge.

J. F. Harwood for appellant.

NORTON, J.

In August, 1875, plaintiffs instituted suit before a justice of the peace, by attachment, against John Sibbett on an open account for about $54. Grounds of attachment: fraudulent disposition of property to hinder and delay creditors. Defendant George Schutt was summoned to appear and answer as guarnishee of defendant Sibbett. Sibbett appeared and filed plea in abatement. Judgment in favor of plaintiffs on plea in abatement. No controversy in regard to amount of account against Sibbett and judgment for plaintiffs, $54.52. Garnishee then answered that he had no funds or property in his hands belonging to Sibbett. Plaintiffs denied the answer. Trial had and judgment for plaintiffs against garnishee for $54.52. Schutt, the garnishee, appealed to the circuit court, where, upon a trial de novo, judgment was rendered for plaintiffs, from which defendant has appealed to this court.

The following is a statement of facts about which there is no controversy: The defendant Sibbett owned certain saloon furniture situate in the town of Cameron, Missouri. He sold said furniture to one Smith for $300, $50 of which was paid in money, and two notes--one for $200, the other for $50, secured by mortgage on the furniture--were given for the balance of the purchase price. It was also admitted that Sibbett transferred both of said notes to defendant Schutt, garnishee, before plaintiffs brought their suit against defendant, and that afterwards plaintiffs brought suit by attachment on the ground that Sibbett had transferred said notes to defraud his creditors. Sibbett appeared and filed his plea in abatement, upon a trial of which plaintiffs had judgment, and, there being no controversy about the amount owing by Sibbett to plaintiffs, judgment was rendered for plaintiffs by the justice for $54.52. The evidence on the part of plaintiffs in the circuit court tended to show that Sibbett had transferred the notes in question with the intent to defraud his creditors. Schutt, the garnishee, offered evidence tending to show that he received the said notes for the purpose of collecting them and paying the proceeds over to Charles Schutt, to whom Sibbett was indebted in the sum of $297, and who, at the time of the delivery of the notes to the garnishee, released $250 thereof to Sibbett. It was also proven by defendant that at the time of the transfer of the said notes defendant was the head of a family and owned no property besides those two notes and $50 received in part payment for the saloon fixtures, and his household furniture, which did not exceed in value $100. The refusal of the court to give the following instructions is assigned for error:

4. That if defendant Sibbett, at the time of the transfer of the notes in question to the garnishee, was a married man and a head of a family, and owned no property except the two notes in question, $50 in money and his household furniture, not exceeding in value $100, then the transfer of said notes could not work a fraud on plaintiffs; and if at the time of such transfer said notes would have been exempt from attachment and execution if retained by defendant, then plaintiffs cannot recover of the garnishee herein. 5. That a justice of the peace has no jurisdiction in attachment proceedings to seize negotiable promissory notes or order them to be delivered into...