Sabin v. Burke

• Decision Date: 31 January 1894
• Citation: 37 P. 352,4 Idaho 28
• Parties: SABIN ET AL. v. BURKE ET AL
• Court: Idaho Supreme Court

37 P. 352

4 Idaho 28

SABIN ET AL. v. BURKE ET AL

Supreme Court of Idaho

January 31, 1894

ERRORS COURT WILL NOT NOTICE.-On appeal this court can only notice error committed against the appellant, not those committed against the successful party.

DECISION OF TRIAL COURT ON FACTS TAKES THE PLACE OF VERDICT OF JURY.-In causes heard by the court below without a jury the decision of the court on questions of fact takes the place of the verdict of the jury in jury trials, and will not be disturbed where there is a substantial conflict in the testimony, unless the decision is clearly against the weight of the testimony.

NOTE PAYABLE IN BANK-CAN BE SUED AFTER BANKING HOURS.-A note without grace, made payable in a bank, placed and remaining therein for collection until due, may be sued upon after banking hours on the evening of the day it falls due, where the opening and closing hours are well known to the maker.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed; costs awarded to respondent.

James W. Reid and D. C. Mitchell, for Appellants (Cox, Teal &amp Minor, of Counsel).

It is admitted that the plaintiffs, Murphy, Grant & Co., Sabin (Dawson) and Ford, had valid subsisting attachments on the property of Barnett, which Burke was attempting to subject to the payment of his judgments before his claims on which he afterward recovered judgments had ripened into judgment, and we contend that the law is well settled that as such attaching creditors with liens on the property, they could maintain a bill in equity to enjoin the subjection of this property to any fraudulent claims, and prevent fraudulent conveyances. This rule is now settled in New Jersey (Curry v. Glass, 25 N. J. Eq. 108; Davis v Dean, 26 N. J. Eq. 436; Conover v. Ruckman, 32 N. J. Eq. 685); New Hampshire (Stone v. Anderson, 26 N.H. 506; Tappan v. Evans, 11 N.H. 311; Sheafe v. Sheafe, 40 N.H. 516; Peck v. Jenness, 7 How. (U S.) 612; Case v. Beauregard, 101 U.S. 691; Talley v. Curtain, 54 F. 43); Michigan (Hale v. Chandler, 3 Mich. 531; Hinchman v. Towne, 10 Mich. 508), and Mississippi (Cogburn v. Pollock, 54 Miss. 639). The rule of law is well settled that collateral securities follow the renewals of the principal indebtedness for the payment of which they have been deposited, whatever may be the form which such indebtedness may assume. (Colebrook on Collateral Securities, sec. 14; Brinkerhoff v. Lansing, 4 Johns. Ch. 65, 8 Am. Dec. 538; Davis v. Maynard, 9 Mass. 242; Cover v. Black, 1 Pa. St. 493; Dayton Nat. Bank v. Merchants' Nat. Bank, 37 Ohio St. 208; Worcester Nat. Bank v. Cheney, 87 Ill. 702.) And the rule of law is equally well established that the giving of a note for an existing indebtedness in the absence of any agreement that the same is taken in payment does not extinguish such indebtedness. (Edwards on Bills and Notes, secs. 284, 288; Daniel on Negotiable Instruments, sec. 1260 et seq.; Randolph on Negotiable Instruments, secs. 1509, 1548, 1560.) The rule is that for the purpose of fixing the liabilities of an indorser, the note is payable on demand at any time during reasonable hours on the last day of grace; but for the purpose of sustaining an action, the holder must wait until the following day, as the maker has the whole day to make payment. (Hopping v. Quinn, 12 Wend. 517; Outhout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 Barb. 104; Bell v. Sackett, 38 Cal. 407; People v. Hatch, 33 Ill. 138; White v. Jones, 38 Ill. 159-163; Reese v. Mitchell, 41 Ill. 368; Watkins v. Willis, 58 Tex. 521; Sanders v. Ochiltree, 5 Port. (Ala.) 73, 30 Am. Dec. 551; Tiedeman on Commercial Paper, sec. 317; 2 Daniel on Negotiable Instruments, last ed., secs. 1208, 1212.)

Philip Tillinghast, for Respondent.

It is shown in the original complaint that the plaintiffs were simple contract creditors, and had not obtained judgment upon their several claims, nor had executions returned nulla bona; therefore have no standing in a court of equity to maintain a creditor's bill. The appellants seemingly attempt to hold that because, after the commencement of the action and prior to the filing of the supplemental bill, the plaintiffs obtained judgment upon their several causes of action against H. K. Barnett and issued executions which were returned nulla bona, that this gives them a standing in a court of equity, and that the interveners, because they did not attempt to intervene until after they had obtained judgment, and the return of nulla bona, are also entitled to a standing in this court. Plaintiff, not having a cause of action at the date of the commencement of the action, cannot maintain a suit upon a cause of action subsequently acquired against the defendant. (Wittenbrock v. Bellmer, 57 Cal. 13; Bohn Mfg. Co. v. Jameson, 39 Minn. 438, 40 N.W. 513; Lowry v. Harris, 12 Minn. 166; Morgan v. Menzies, 65 Cal. 244, 3 P. 807; Chandler v. Petit, 1 Paige Ch. 168.) In the decision rendered by Mr. Justice Brewer, now of the supreme court of the United States, one of the ablest judges upon that bench, when on the supreme bench of Kansas (Tennent v. Battey, 18 Kan. 326), after very carefully considering and reviewing all of the authorities, and upon a statute very similar to that of Idaho the learned judge in rendering the decision of the court says: "The only right the plaintiffs have under the attachment is to use such measures as may be necessary to preserve this security until they can reduce their claim to judgment. They have no right to harass other parties with litigation that may prove fruitless, in trying to remove obstructions to the sale of the property, until they have first obtained the right to have a sale of the property made. When that right has been definitely settled, their lien having been preserved in tact, they can then commence actions to remove obstructions in the way of their execution. But until this is done, they have no right to interfere with the claims of third parties. There can be no reason or necessity for such a proceeding. (Martin v. Michael, 23 Mo. 50, 66 Am. Dec. 656; Weil v. Lamkins, 3 Neb. 38; Bigelow v. Anderson, 31 Ill. 322; Shufeldt v. Baehm, 96 Ill. 265; Thurber v. Blank, 50 N.Y. 8.) The lower court, in its findings of fact, found that all of the charges of fraud, collusion and conspiracy between the defendants Burke and Barnett were false. (Chamberlain v. Woodin, 2 Idaho 642, 23 P. 179.) In British-American Assur. Co. v. Neil, 76 Iowa 645, 41 N.W. 382, the court holds that "the findings have the effect of a verdict, and will not be set aside unless they are so against the proof as to raise a presumption of passion or prejudice." (Reay v. Butler, 95 Cal. 206, 30 P. 209; Patterson v. Scott, 142 Ill. 138, 31 N.E. 433; Coari v. Oleson, 91 Ill. 280; Cox v. Northwestern Stage Co., 1 Idaho 377.) A note payable at a bank after dishonor can be sued immediately after banking hours on the day it was due. (Staples v. Franklin Bank, 1 Met. 43, 35 Am. Dec. 354; State Bank v. Napier, 6 Humph. 270, 44 Am. Dec. 310; Greeley v. Thurston, 4 Greenl. 479, 16 Am. Dec. 285; Shed v. Brett, 1 Pick. 401, 11 Am. Dec. 209.) This note was payable at a bank, and if so payable no demand is necessary. (United States v. Carmichael, 2 Pet. 249; Gillett v. Averill, 5 Denio, 85; 2 Daniel on Negotiable Instruments, sec. 1210; Church v. Clark, 21 Pick. 310.)

R. L. Sabin and others allege that they were creditors in the sum of about $ 25,000, Murphy, Grant & Co. for the sum of $ 5,962.07, W. and I. Steinhart & Co. in the sum of $ 1,367.86, W. C. Noon & Co. in the sum of $ 3,091.14, together with various other amounts for attorneys' fees, costs, etc., on nearly all of which indebtedness attachments were issued at various dates during the month of September, 1889. Plaintiff further alleges that on each of the above judgments execution had been issued to the sheriffs of the respective counties, and has been returned nulla bona; that H. K. Barnett did on the second day of September, 1889, make his promissory note to John Burke for the sum of $ 24,350, due one day after date; that said Burke commenced suit thereon after 4 o'clock on the third day of September, 1889, but did not issue or serve summons or attachment thereon until the twenty-third day of September, 1889; that on September 24th said Burke caused an attachment to be levied upon all the goods and chattels of the said Barnett, in Latah and Nez Perces counties; that on the twenty-first day of September, 1889, the said H. K. Barnett executed his certain other promissory note to John Burke for the sum of $ 7,300; that an attachment was issued September 23d on the latter note and levied on the goods and chattels of the said H. K. Barnett, on the twenty-fourth day of September, 1889.

Plaintiffs further allege that both said notes were executed in furtherance of an agreement made and entered into by and between the said H. K. Barnett and the said John Burke, for the purpose of aiding, abetting and assisting the said H. K. Barnett to delay, hinder and defraud his creditors, and particularly the plaintiffs and their assignors; that the said notes were for sums largely in excess of the amounts due the said John Burke from the said H. K. Barnett; that they were without adequate or any consideration; also that said suits were commenced and attachments levied upon all the goods and chattels of the said Barnett for the said purpose of hindering, delaying, and defrauding his creditors.

Plaintiffs further allege that at the time said attachments were issued the said John Burke had in his possession a large amount of promissory notes belonging to the said H. K. Barnett, which were indorsed and transferred to said Burke as collateral security for the payment of said first-mentioned notes, which...