Ray v. Gore

• Decision Date: 18 January 1889
• Citation: 41 N.W. 329,73 Mich. 385
• Court: Michigan Supreme Court
• Parties: RAY v. GORE.

41 N.W. 329

73 Mich. 385

RAY v. GORE.

Supreme Court of Michigan

January 18, 1889

Certiorari to circuit court, Berrien county.

Action by George R. Gore against Hiram W. Ray for goods sold and delivered. An attachment was issued and levied on defendant's goods, but on motion of defendant, after judgment in the action was rendered, it was dissolved, and plaintiff brings certiorari.

LONG J.

On December 20, 1886, George P. Gore prosecuted out of the circuit court of Berrien county a writ of attachment. The writ was placed in the hands of the sheriff of said county and he levied the same upon a stock of boots, shoes, etc., of the defendant. Issue was joined in the cause, and upon a trial had therein on April 25, 1887, judgment was rendered in favor of the plaintiff and against the defendant for the sum of $296.43. It appears that after the writ of attachment had been served, and the goods taken by the sheriff, the defendant in the writ, Hiram W. Ray, made a petition to a circuit court commissioner of Berrien county for a dissolution of the writ. A hearing was had upon the petition before the commissioner, who made an order dissolving the writ. From this order Gore appealed to the circuit court for Berrien county, and the cause was brought on for hearing in said court on April 28, 1887, before a jury, who returned a verdict in favor of the petitioner dissolving the writ of attachment, and judgment was entered on said verdict by the court. The cause comes to this court by certiorari to review those proceedings. The principal allegation of error stated in the affidavit for the writ of certiorari is: "The court erred in taking further cognizance of this proceeding for the dissolution of the attachment after it was shown that judgment had been previously rendered and entered in the principal cause commenced by said writ." Error is also alleged upon certain portions of the charge of the court and the refusal of the court to give respondent's requests in change to the jury. The charge in the affidavit upon which the writ of attachment issued is "the deponent has good reason to believe, and does believe, that the said Hiram W. Ray is about to dispose of his property with intent to defraud his creditors." This allegation in the affidavit for the writ of attachment is denied in the petition for the dissolution of the writ of attachment.

It appeared on the proceeding to dissolve the writ in the circuit court that Gore was doing business in the city of Chicago, and that Ray was engaged in a retail business at St Joseph, in Berrien county, this state, during the year 1886. Gore sold to Ray during that year several bills of goods, aggregating about $673.49. While Ray was owing Gore for these goods, he executed a chattel mortgage upon his stock; and, this fact coming to the knowledge of Gore, he sent his agent out from Chicago to investigate Ray's financial condition. The agent arrived at St. Joseph on Saturday evening, December 18, 1886, about 7 o'clock, and it is claimed by the respondent that an agreement was then made between the agent and Ray and his attorneys that they would meet on the next morning at 9 o'clock, and in the mean time Ray should not dispose of the stock; that a meeting was had the next morning, and adjourned by request of Ray until 2 o'clock in the afternoon, when he was advised by Ray that nothing would be done in the way of giving security to Gore. The agent then started for the county-seat, some 15 miles distant, and on Monday morning returned with the writ of attachment in the hands of the sheriff of the county; but before the stock could be seized under the writ, Ray had placed eight chattel mortgages thereon, which the agent found filed in the town clerk's office, amounting to some $1,946.26. One of these mortgages, to William F. Sesser, given for the sum of $380.28, was made up by adding together debts which Ray owed to 15 other parties. At the time of the execution of this mortgage Sesser made and delivered to Ray the following agreement: "Whereas, Hiram W. Ray has this day given me a certain mortgage in the sum of $380.28, this memorandum witnesseth that the said Ray is to pay me, according to the conditions of said mortgage, said sum, and I am to pay such sum, when so paid to me, to the following-named persons, creditors of said Ray, immediately on the receipt thereof; it being understood that said Sesser takes no obligation upon himself other than the faithful execution of said trust, to-wit: [Here follow the names of the persons and the amount to be paid to each.] Such mortgage being taken by said Sesser on the assurance of said Ray that the above-named indebtedness is bona fide, should only a part of said sum be paid said Sesser, such part is to be paid pro rata to each of said creditors." The respondent, to sustain the allegations in the affidavit for the writ, that "the defendant is about to dispose of his property...