Richolson v. Freeman

• Decision Date: 08 February 1896
• Docket Number: 8022
• Citation: 56 Kan. 463,43 P. 772
• Parties: OLEY RICHOLSON, as Sheriff of Elk County, v. L. A. FREEMAN
• Court: Kansas Supreme Court

43 P. 772

56 Kan. 463

OLEY RICHOLSON, as Sheriff of Elk County, v. L. A. FREEMAN

No. 8022

Supreme Court of Kansas

February 8, 1896

Decided January, 1896.

Error from Elk District Court.

C. W CANOOSE, being the owner of a stock of goods at Longton Kan., on April 2, 1889, made a bill of sale thereof to L. A Freeman, the defendant in error. Canoose was indebted in a considerable sum on said goods, and on April 4, 1889, several suits were commenced against him on the claims, and orders of attachment were levied on the stock by Oley Richolson, as sheriff of Elk county. On April 12, Freeman replevied the goods from the sheriff, who gave a redelivery bond, and the property was returned to him, and afterward sold as upon execution by order of the court. This action of replevin was tried four times before a verdict was reached, and this was in favor of Freeman, at May term, 1891, for the sum of $ 2,850. The sheriff filed his motion for a new trial, which the court overruled, stating the reasons therefor at great length, the following being some of his remarks thereon namely:

"I am willing to concede now, that, in my opinion, there never can be but one final outcome to this case. That has always been my opinion of the case. I have always been of the opinion that the defendant must prevail in this case finally. I have always been of that opinion, and I am of that opinion now. . . . They [the jury] say, and have said, that the circumstances that surrounded Freeman, at the time when he bought these goods were not such as to have induced a man of ordinary prudence to inquire into his financial condition. I think they were, and I do n't agree with the jury as to the manner in which they have answered that question. . . . This case has been tried here by four juries of this county, fairly, and each time it was tried I have been of the same opinion that I am now, namely, that the plaintiff never can finally recover in this case under the law and the facts; but three juries have disagreed. Part of the jury heretofore have thought with the court, and part have thought otherwise. If I should do my duty here, probably, strictly and literally, under the law as announced by our supreme court, . . . I would set this verdict aside. . . . I may have committed error in saying it frankly, in the instructions to the jury, that, in the opinion of the court, C. W. Canoose made that sale with intent to hinder, delay and defraud his creditors. I do n't think there is any doubt about that. The very minute he got his money he skipped out. Of course he sold to defraud his creditors. I think the jury ought to have said so. . . . I think he sold these goods with intent to defraud his creditors. I am inclined to think that Mr. Freeman had notice of such facts to have put him on inquiry at that time."

Error in the admission of testimony and in giving instructions is also alleged. The opinion was filed February 8, 1896.

Judgment reversed.

J. B. Ziegler, and W. E. Ziegler, for plaintiff in error.

L. Scott, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

I. It is evident, from the remarks of the trial judge, that the verdict did not meet with the approval of the court and it should have been set aside and a new trial granted, although there had been three prior disagreements. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 3, 4, 12, 13, and cases cited.)

II. Upon Freeman's examination in chief as a witness in his own behalf, he was asked the following question: "Had you any knowledge or notice that Mr. Canoose was selling this stock of goods with intent to hinder, delay and defraud his creditors?" and he answered, "No, sir." This is alleged as error, but the question was competent, under the authority of Gentry v. Kelley, 49 Kan. 82, 88, 30 P. 186.

III. Complaint is made of instructions given, and the court seems to have erred both to the prejudice of the plaintiff and the defendant. At the request of the defendant below, the court gave the following instruction:

"2. If you are satisfied, from the evidence, that C. W. Canoose sold and transferred to the plaintiff the goods in controversy with the intent to defraud, or to hinder and delay, his creditors, then the burden falls upon the plaintiff; and before he can recover he must satisfy your minds, by the preponderance of the evidence, that he made the purchase without knowledge or notice of such fraudulent intent on...