Parker v. Cleaveland

CourtUnited States State Supreme Court of Florida
Writing for the Court[37 Fla. 44] LIDDON, J.
Citation19 So. 344,37 Fla. 39
PartiesPARKER et al. v. CLEAVELAND.
Decision Date28 January 1896

19 So. 344

37 Fla. 39

PARKER et al.
v.
CLEAVELAND.

Florida Supreme Court

January 28, 1896


Appeal from circuit court, Duval county; W. B. Young, Judge.

Action by Parker, Holmes & Co. against Harry E. Cleaveland. Judgment for defendant. Plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The appellee made a written statement of his means and property February 11, 1890, in which, among other property, he stated that he owned phosphate land and city property of the aggregate value of $2,300, and described the property as '80 acres phosphate land in Hernando county, and house and lot in St. Augustine, Fla.' There was no other evidence to show that the phosphate land in question was owned by appellee. The appellee, April 19, 1891, made a general assignment for the benefit of his creditors. This assignment was attacked by an attachment, upon the ground that such evidence showed that the appellee had fraudulently withheld such land from the same. Held, that a statement by appellee, more than a year and three months previous, is not sufficient evidence that he still owned the land at the date of the assignment, and fraudulently withheld the same. The proof of a fraudulent withholding of property from an assignment for the benefit of creditors should be less remote and more definite and certain.

2. A general exception of exempt property from an assignment for the benefit of creditors does not, ipso facto, make the assignment deed void for uncertainty, or fraudulent and void as against creditors, and does not authorize an attachment against the assignee on account of its having been executed.

3. A certified transcript, from a record, of an instrument which has been spread thereon, without any such proof or acknowledgment of its execution as is necessary to admit it to record, is not admissible in evidence. The transcription of a paper upon the record under such circumstances is a nullity, and of no effect.

4. The certificate of a clerk of a circuit court as to a matter of fact is not admissible in evidence. The law as to certificates of such officers as custodians of records only extends to transcripts of such records. If their testimony is desired upon other points, they should be regularly sworn, and testify as other witnesses.

COUNSEL [37 Fla. 40] M. C. Jordan, for appellants.

R. H. Liggett, for appellee.

OPINION

[37 Fla. 44] LIDDON, J.

The appellants (plaintiffs below) began an action of assumpsit upon unpaid bills of merchandise against the appellee (defendant below) for $1,100, and in said action sued out a writ of attachment against the defendant. The affidavit for attachment was made April 16, 1891, by one William L. Haynes, agent of the plaintiffs, and the grounds alleged are that said affiant had reason to believe, and did believe (1) that the defendant would fraudulently part with his property before judgment could be recovered against him, and (2) that said defendant was fraudulently disposing of his property. The defendant filed his affidavit, traversing the special grounds for attachment, and upon such affidavit moved to dissolve the attachment. The motion was submitted to the circuit judge, a jury being waived by each party, and upon hearing the attachment was dissolved. The plaintiffs appealed.

The errors assigned, so far as necessary, will be noticed in regular order. The first three assignments, as follows: (1) That the court erred in refusing to grant a new trial; (2) that the judgment was against [37 Fla. 45] the law; and (3) that the judgment was against the evidence,--may be considered together.

It appears, from the record, that on April 15, 1891, the day preceding the institution of plaintiffs' suit and suing out of attachment, the defendant had made a general assignment for the benefit of his creditors, under the statute in such cases then in force. The property had gone into the hands of the assignee before the writ of attachment issued, and was levied upon in his hands. The plaintiffs, after suing out their attachment, on April 25, 1891, also sued out a writ of garnishment against the assignee. The record does not show what disposition, if any, was made of the garnishment proceeding. The plaintiffs claim that, for two different reasons, the assignment was fraudulent and void, so as to justify them in suing out the attachment upon the grounds stated in their affidavit. The first of these reasons is that the assignment did not comply with the act of 1889 (chapter 3891, Laws Fla. 1889), under which it was made, in that it 'did not provide for an equal distribution of all the assignor's property, real, personal, and mixed, except such as is exempted by law from forced sale, among the several creditors of the assignor in equal proportion,' etc. Upon this point it is claimed that the evidence shows that 80 acres of phosphate land in Hernando county, owned by the defendant, was not included in the assignment. The second reason that the deed of assignment is fraudulent and void is because of the reservation therein, in general terms, of all property of the assignor exempted by law from forced sale, without a specific description of such exempt property.

Recurring to the first reason stated above, we will summarize the evidence upon this point, in order to ascertain if it shows the ownership by the...

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8 practice notes
  • Campbell v. Skinner Mfg. Co.
    • United States
    • United States State Supreme Court of Florida
    • April 9, 1907
    ...Fla. 345, 9 So. 213; Hope v. Johnston, 28 Fla. 55, 9 So. 830; Keech v. Enriquez, 28 Fla. 597, 10 So. 91; Parker, Holmes & Co. v. Cleveland, 37 Fla. 39, 19 So. 344. No necessity existed, then, for the enactment of a law making certified copies of legally recorded instruments admissible in ev......
  • Sullivan v. Mcmillan
    • United States
    • United States State Supreme Court of Florida
    • February 18, 1896
    ...the jury. By this holding we do not intend to determine whether the interest could have been calculated only from the date sufficient for [19 So. 344] the completion of the contract, or whether it should have been estimated from the breach of the same, or from the filing of the writ in the ......
  • Mckeown v. Collins
    • United States
    • United States State Supreme Court of Florida
    • December 1, 1896
    ...832) 6 So. 871; Hope v. Johnston, 28 Fla. 55 (text, 61) 9 So. 830, 832, where other Florida cases are collected; Parker v. Cleveland, 37 Fla. 39, 19 So. 344. There is no error in the decree of the circuit court, and it is affirmed. ...
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...(4 Lawson, Right & Rem., § 96; Burrill, Assignments, § 96; 59 Miss. 80; 15 Mo.App. 544; 85 Mo. 23; 100 Pa.St. 580; 36 P. 195; 12 Mich. 180; 19 So. 344; 24 S.E. 103; 64 N.W. 78), even in cases where the assignment purports to carry all of assignor's property, and there is no reservation of e......
  • Request a trial to view additional results
8 cases
  • Campbell v. Skinner Mfg. Co.
    • United States
    • United States State Supreme Court of Florida
    • April 9, 1907
    ...Fla. 345, 9 So. 213; Hope v. Johnston, 28 Fla. 55, 9 So. 830; Keech v. Enriquez, 28 Fla. 597, 10 So. 91; Parker, Holmes & Co. v. Cleveland, 37 Fla. 39, 19 So. 344. No necessity existed, then, for the enactment of a law making certified copies of legally recorded instruments admissible in ev......
  • Sullivan v. Mcmillan
    • United States
    • United States State Supreme Court of Florida
    • February 18, 1896
    ...the jury. By this holding we do not intend to determine whether the interest could have been calculated only from the date sufficient for [19 So. 344] the completion of the contract, or whether it should have been estimated from the breach of the same, or from the filing of the writ in the ......
  • Mckeown v. Collins
    • United States
    • United States State Supreme Court of Florida
    • December 1, 1896
    ...832) 6 So. 871; Hope v. Johnston, 28 Fla. 55 (text, 61) 9 So. 830, 832, where other Florida cases are collected; Parker v. Cleveland, 37 Fla. 39, 19 So. 344. There is no error in the decree of the circuit court, and it is affirmed. ...
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...(4 Lawson, Right & Rem., § 96; Burrill, Assignments, § 96; 59 Miss. 80; 15 Mo.App. 544; 85 Mo. 23; 100 Pa.St. 580; 36 P. 195; 12 Mich. 180; 19 So. 344; 24 S.E. 103; 64 N.W. 78), even in cases where the assignment purports to carry all of assignor's property, and there is no reservation of e......
  • Request a trial to view additional results

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