St. Louis Coffin Co. v. Al

• Decision Date: 04 March 1884
• Parties: ST. LOUIS COFFIN COMPANY, Respondent, v. G. A. RUBELMAN ET. AL., Appellants.
• Court: Missouri Court of Appeals

15 Mo.App. 280

ST. LOUIS COFFIN COMPANY, Respondent,

v.G. A. RUBELMAN ET. AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 4, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

HENRY W. BOND and G. D. BANTZ, for the appellants: The court improperly amended the verdict. There was no judgment as to one of the defendants.--2 Saund. (Eng.) 212, note 4; 2 Hill (N. Y.), 332; 48 Conn. 520; 45 Texas, 220-226; 2 Saund. 212; 5 Mass. 1; 1 Ld. Raym. 324, 600; 3 Mo. 390; 2 Mo. App. 571; affirmed, 7 Mo. App. 89; 17 Ga. 361; 12 Ill. 84; 37 Ill. 164; 2 Hill, 332; 4 Yeates (Penn.), 293; 2 Strange, 1089; 23 Mo. 389; 5 Mo. 51; 19 Mo. 442. It would be too great a restriction upon the common business and traffic of men, if every purchase from a debtor were to be conclusively invalidated, because the proceeds were subsequently misapplied. Bump on Fr. Conv. 237; Brown v. Smith, 7 B. Mon. 361; Brown v. Force, 7 B. Mon. 357; Donnell v. Byrne, 69 Mo. 468. We, moreover, insist that even where it appears that a creditor who is seeking, bona fide, the payment of his debt, advances money to his debtor, agreeing to take additional property therefor, and knew at the time that the debtor intended to withhold the money so obtained from his other creditor, that even in that event the purchase will not be fraudulent, if it appears that the creditor had reasonable ground to apprehend, and, in fact, believe, that unless he resorted to such expedients he would be unable to secure a preference from his debtor.--60 Penn. 430; 94 Penn. 316; 44 Mich. 496-499; 50 Ga. 213; 5 B. Mon. 307; 3 B. Mon. 550-559; 32 Vt. 139; 73 Mo. 74.

CHAS. B. STARK and A. MOORE BERRY, with whom is T. A. RUSSELL, for the respondent: If a creditor takes from his debtor a conveyance of property no more than reasonably sufficient in amount to pay an honest debt, and, as a part of the same transaction, advances money to his debtor and takes property therefor over and above that which he takes specifically to pay his debt, and it is the intention of the debtor at the time to defraud his other creditors, and the creditor has knowledge of such facts and circumstances as would induce a reasonable man to believe his debtor intended thereby to commit a fraud, the conveyance is void as to the other creditors, notwithstanding the creditor may have promised to advance the money before he had notice of the fraud.-- McNichol v. Richter, 13 Mo. App. 515; Kuykendall v. McDonald, 15 Mo. 416-420; Potter v. McDowell, 31 Mo. 62-74; Allen v. Berry, 50 Mo. 90; Shelley v. Boothe, 73 Mo. 74; Arnholt v. Hartwig, 73 Mo. 485. Where no objection is made by demurrer or motion to a misjoinder of causes of action, or improper union of different causes of action in one count in the petition, the defect is waived and objection comes too late after verdict.--Rev. Stats. 1879, sect. 3519; House v. Lowell, 45 Mo. 381; Williamson v. Fisher, 50 Mo. 198; Pomeroy v. Benton, 57 Mo. 531-551; Whittelsey's Pr., Myer's Sup., sect. 161, p. 72; Union Bank v. Dillon, 75 Mo. 380-382. The court may, at any time before or after judgment, amend any record in furtherance of justice by striking out the name of a party or correcting a mistake in any other respect.--Rev. Stats. 1879, sects. 3567, 3569, 3570; Thompson v. Mosely, 29 Mo. 477-479; Parry v. Woodson, 33 Mo. 347-348; Cruchon v. Brown, 57 Mo. 38; Weil v. Simmons, 66 Mo. 617-619; Jackson v. Bowles, 67 Mo. 609-613.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff began suit against Richter, on which it obtained judgment on February 14, 1882, for $1,001.09. Pending this action, plaintiff sued out an attachment in aid. The sheriff's return to this writ shows that he executed it by declaring in writing to G. A. Rubelman & Co., by G. A. Rubleman, a member of said firm, that he attached in their hands all debts due from them to defendants, and all goods, moneys, effects, rights, credits, chattels, choses in action, and evidences of debt of the defendant Fritz Richter, or so much thereof as would be sufficient to satisfy the debt, interest, and costs in the suit; and he at the same time further executed the writ by summoning G. A. Rubelman & Co. as garnishees by declaring to them in writing that he summoned them, etc.

The answer purports to be the answer of George A. Rubelman & Co., and is signed and sworn to by George A. Rubelman. All the interrogatories, except the last, are answered in the negative. To the last, the answer is that Richter sold to Rubelman & Co., in July, 1881, personalty worth $3,000, which sale left him indebted to Rubelman & Co. about $400 or $500.

Plaintiff's denial of the answers of the garnishees, after a specific denial of each answer, sets up that in July, 1881, defendant Richter, being indebted and insolvent, made to the garnishees, Rubelman & Co., a pretended sale and delivery of two stores and other personal property, for a pretended consideration of $3,000, which was all the property of Richter subject to execution, and then worth over $7,000; that this sale was fraudulent, and made for the use and benefit of Richter, and without consideration, all of which was then known to said Rubelman & Co., who conspired with Richter to hinder, delay, and defraud the creditors of Richter. Plaintiffs further allege that said garnishees had, at the time of the garnishment, and still have in their possession, money, credits, effects, and chattels of Richter worth $7,000, to which they have no legal claim whatever, and for which they are indebted to him.

The jury returned the following verdict: “We, the jury, find the issues joined herein between the plaintiff and the defendant garnishees, in favor of plaintiff; and we assess the total value of the money, property, and effects of Fritz Richter in the garnishee's hands at the date of the garnishment, on September 17, 1881, to be $3,000.

Motions in arrest of judgment and for a new trial were duly filed. The court ordered that these be overruled unless plaintiff would remit $1,600 of the verdict. The remittitur was entered, and the motions were overruled. The court then ordered that the words “& Co.” after the name of Rubelman, in the caption of the verdict, be expunged from the verdict and the record, and ordered that G. A. Rubelman pay to the sheriff within four days, for the use of plaintiff, $1,083.65, being the amount of the judgment in the original case. No such payment being made, there was final judgment.

1. The grounds of the motion in arrest were that the petition stated no cause of action against defendant; that the verdict is not responsive; that notice of attachment was not served on both defendants.

The testimony in this case as presented at length in the record, is very long, and to this is added the depositions of several persons, which were read in evidence, and which are made part of the transcript by stipulation. One of these depositions is that of George Fleischer, from which it appears that he was a partner of Rubelman, and a member of the firm of Rubelman & Co. Precisely who composed that firm does not, so far as I have observed, appear in evidence; though it seems to be taken for granted by counsel on both sides that the firm was composed of Rubelman and Fleischer. Fleischer does not answer; he is not summoned as garnishee; no effects are attached in his hands; there seems to have been no verdict as to him. The court, in striking out the words “& Co.,” was not striking out the name of a party. Nothing was gained, and nothing was lost, by striking out the remaining appendage to the name of George A. Rubelman. We think the verdict was good and responsive to the pleadings, as a verdict against George A. Rubelman, and that the court committed no error in striking out the words “& Co.” and entering judgment upon the verdict against George A. Rubelman alone.

2. The denial of the answer of the garnishee stands for the petition in issues made between the attaching or execution creditor and the garnishee, and it is to be judged by the rules of pleading applicable to a petition under the case in an ordinary action. 75 Mo. 380. It charges the garnishee with the possession of the property, and also with an indebtedness to the defendants. It alleges that the sale and delivery of the property by Richter to the garnishee was invalid, as a conveyance made to the use of Richter; but the case was put to the jury upon the assumption that a consideration passed, but that the conveyance was void as being in fraud of creditors. It is, however, too late now to make technical objections to the pleadings. There is no question of surprise, and when this is so, it becomes immaterial after verdict that the parties at the trial disregarded...