Robinson v. Worley

• Decision Date: 24 September 1897
• Parties: ROBINSON et al. v. WORLEY et al.
• Court: Kentucky Court of Appeals

42 S.W. 95

ROBINSON et al. v. WORLEY et al.

Court of Appeals of Kentucky.

September 24, 1897

Appeal from circuit court, Todd county.

"Not to be officially reported."

Action by J. M. Robinson, Norton & Co. against M. M. Worley and others. Judgment for defendants, and plaintiffs appeal. Modified.

Ben T Perkins and Edward W. Hines, for appellants.

Forgy &amp Petrie, for appellees.

GUFFY J.

M. M Worley, a merchant in Guthrie, Ky. made an assignment of his property for the benefit of all his creditors to J. B. Lyne December 2, 1893, which was duly accepted and recorded on the 5th of December, 1893. On the 27th of December, 1893 appellants, J. M. Robinson, Norton & Co., instituted suit in the Todd circuit court against said Worley and Lyne, seeking as against Worley to recover judgment for more than $900, and obtained an attachment against the property of Worley upon the ground that he had not property in the state sufficient to pay their claim, and collection of same would be endangered by the delay in taking judgment, etc., and also upon the further ground that he had sold and disposed of his property with the fraudulent intent to cheat and delay his creditors. The appellants also set up the fact of the assignment, and charged that it was fraudulent, and sought to have it set aside. The attachment was levied on the stock of goods then on hand, which was sold under order of court by the receiver, Butler. McMurray asserted a landlord's lien upon the goods or their proceeds for $_____, rent due from the said Worley. Both Worley and Lyne answered the petition of plaintiffs and of McMurray, and contested the lien of McMurray, and also contested the attachment, and denied all fraudulent intent on the part of Worley in making the assignment. Upon final hearing the court dismissed the attachment, and rendered judgment against the appellants, Robinson, Norton & Co., for costs, and allowed D. M. Butler, as receiver, $117.50, to cover the expense incurred by him as receiver and to compensate him for his services as such, and that same be taxed as part of the costs of this suit against Robinson, Norton & Co., recovered by Lyne as assignee; and also directed the receiver to pay over to the assignee the proceeds of the sale of the goods, and allow McMurray a lien for all rent due from Worley to the estate of W. W. McMurray which had not been due more than 120 days before suing out the order of attachment herein, which sum was adjudged to be $60, which said Lyne was directed to pay. The plaintiffs, Robinson, Norton & Co., and McMurray's administrator, each have prosecuted an appeal from the foregoing judgment. It is insisted by appellants, Robinson, Norton & Co., that the assignment was fraudulent, and should be set aside; that it was made with the view of hindering or delaying creditors. It appears from the evidence that the assignor, Worley, was continued in the possession of the assigned property, conducting the business apparently the same as theretofore. It also appears from the deed of assignment that the property was valued by him at a much larger sum than the amount of his indebtedness. It is also proven that he said after the assignment, in substance, that he was afraid he would be pressed by his creditors, and his property sacrificed, and for that reason made the assignment. It also appears that before the assignment he asked the appellee Lyne to employ him as clerk or agent to sell the...