State ex rel. Jones v. Martin

• Decision Date: 30 April 1883
• Citation: 77 Mo. 670
• Parties: THE STATE ex rel. JONES, Appellant, v. MARTIN.
• Court: Missouri Supreme Court

77 Mo. 670

THE STATE ex rel. JONES, Appellant,

v.MARTIN.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

Shanklin, Low & McDougal for appellant.

Hicklin & Yates with Hollister for respondent.

PHILIPS, C.

This is an action brought by James T. Jones against Martin, as sheriff of Daviess county, and the sureties on his bond, for damages, tried on change of venue in Livingston county. The breach of the bond assigned is, that one Hunter having obtained against Theophilus Jones a judgment for $1,916, Martin, as such sheriff, “without leave and wrongfully levied upon, seized, etc., as the property of said T. Jones,” the goods and merchandise set out in the petition, of the value of $5,850, which were the “property of the relator, and has not returned the same or any part thereof.” The answer took issue as to the value of the goods, and denied that they were “of any greater value than $2,500.” The answer claimed that the goods were the property in fact of said Theophilus, who was the father of the relator, and that the relator's claim to said goods was fraudulent as to the creditors of said Theophilus, and especially as to said Hunter.

The evidence showed that the father of the relator owned in fact a hotel, which he traded, and took in exchange therefor a stock of goods estimated to be worth about $2,500. These goods were placed in the name of the relator, and the business was conducted in his name. But the father managed the entire concern, bought all the goods, and the evidence was such as to leave no doubt in any unprejudiced mind that the father was the real party in interest, that his object in employing his son's name was to defraud Hunter, and that his son was privy thereto. The stock of goods were, from time to time, replenished by the father, but the goods were bought in the name of the son.

The sheriff, Martin, having testified on behalf of the defense, the following occurred:

On cross-examination plaintiff's counsel put to witness the following question: “Did you not levy upon and sell several hundred dollars' worth of goods over and above enough to satisfy the execution in your hands?” Which question was objected to by defendant's counsel as irrelevant, which objection was sustained by the court.

Plaintiff's counsel then asked the following question: “Did you not sell from $500 to $600 worth of goods after you had sold enough to satisfy the execution in your hands?” To this question the defendant's counsel objected as irrelevant, which objection was sustained by the court.

Witness then testified: “I sold all the goods in the store, both boxed and unboxed. I sold some that were boxed up for about $130.”

Plaintiff's counsel then asked the following question: “How much money did you receive for all the goods sold?” Which was objected to by defendant's counsel as irrelevant, which objection was sustained by the court.

Witness then testified: The queensware had not been taken out of the box. I sold that box, I think, for $130. I tendered back some of the goods after the sale to the plaintiff. He refused to receive them.

Plaintiff's counsel then asked the witness the following question: “Did you ever tender or offer to return any money that you had received on the goods sold over and above the satisfaction of the execution in your hands?” Which question was objected to by defendant's counsel as irrelevant, which objection was sustained by the court. Witness then further testified: “A small lot of the goods levied on were not sold. I offered them back. I offered to deliver them back to all three--Theophilus, James T. and George. They would not accept them.”

Plaintiff prayed the court to instruct the jury as follows:

1. If the jury find from the evidence that defendant Martin, as sheriff, levied upon and sold goods purchased by James T. Jones, they must find for the plaintiff as to such goods.

2. Unless the jury find from the evidence that Theophilus Jones, with intent to hinder, delay or defraud his creditors or said Hunter, conveyed or caused the stock of goods in controversy to be conveyed to James T. Jones, the jury must find for the plaintiff the value of the stock of goods seized and sold.

3. Theophilus Jones, even though insolvent, could rightfully sell or dispose of his property in payment of his debts; and he had a right to prefer his son as a creditor, if he was a creditor. [Provided he did not thereby intend to defraud, hinder or delay his creditors.]

4. The burden of proof is upon defendant to show that all the property seized by the sheriff and here in controversy was by Theophilus Jones transferred or caused to be transferred to James T. Jones for the purpose of hindering or delaying the creditors of Theophilus Jones, and that James T. Jones intended thereby to hinder, delay or defraud the creditors of Theophilus Jones.

5. If the jury find from the evidence that a portion of the goods in controversy were purchased by James T. Jones on his own credit, and that no property of Theophilus Jones was used in payment therefor or in purchasing the same, the jury must find for plaintiff as to such goods so purchased.

6. If the jury find from the evidence that plaintiff's mother and grandfather, or either of them, gave to plaintiff any bonds, bills, notes or other valuable things as his own, then said notes or property and the interest thereon, so received by him, was and is his sole and individual property, and he could claim the same at any time, although he was not at the age of twenty-one years when said notes or other property were so given him.

8. Although the jury may find from evidence that there was an attempt on part of Theophilus Jones to defraud his creditors, and that James T. Jones knew of it, still the jury are instructed that the property after acquired by James T. Jones, of other merchants, and for which he still owes, could not be affected by said fraud, and the jury will find for the plaintiff in such sum as they may find from the evidence James T. Jones had in said store, so purchased of other parties as aforesaid.

9. If the jury find from the evidence that defendant levied upon and sold any more goods than the execution called for, he became a trespasser from the beginning, and the jury must find for the plaintiff the amount of goods sold, at their actual cash value after said execution was satisfied.

10. Although the jury may find that Theophilus Jones sold said hotel property to his son with intent to hinder and delay his creditors, still the jury will find for plaintiff the entire amount of the sale of said property so seized and sold by defendant, unless defendant has satisfied the jury by a preponderance of the testimony that plaintiff knew of said fraudulent design on the part of his father, and purchased said stock of goods for the purpose of enabling him to carry out said design.

Of which said instructions the court gave those numbered one, two, four, five, six, seven and ten, as asked, and modified the third by adding the clause which is included in brackets, thus [ ] and refused to...