State v. Trimble

• Decision Date: 11 October 1926
• Docket Number: No. 25545.,25545.
• Citation: 287 S.W. 432
• Parties: STATE ex rel. FIRST NAT. BANK OF MILAN v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

287 S.W. 432

STATE ex rel. FIRST NAT. BANK OF MILAN v. TRIMBLE et al., Judges.

No. 25545.

Supreme Court of Missouri, Division No. 1.

October 11, 1926.

Certiorari to Kansas City Court of Appeals.

Certiorari by the State of Missouri, on the relation of the First National Bank of Milan, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, to have quashed the record of the Kansas City Court of Appeals in a cause lately pending before it on appeal from the circuit court of Livingston county, entitled First National Bank of Milan v. Oliver Kibble and Mary E. Kibble, 273 S. W. 148. Writ quashed.

W. C. Irwin, of Jefferson City, L. A. Chapman, of Chillicothe, U. A. House, of Milan, and Kitt & Marshall, of Chillicothe, for relator.

RAGLAND, P. J.

This is an original proceeding in certiorari, wherein relator seeks to have quashed, on the ground of conflict of decision, the record of the Kansas City Court of Appeals in a cause lately pending before it on appeal from the circuit court of Livingston County entitled First National Bank of Milan, Appellant, v. Oliver Kibble and Mary E. Kibble, Respondents, 273 S. W. 148.

The opinion of the Court of Appeals, in so far as it states facts which have a bearing on the question raised in this proceeding, is as follows:

"This is an action by attachment in aid of a suit upon a promissory note of $4,160 executed by defendants to plaintiff. * * *

"Plaintiff is a national bank of Milan, Sullivan county, Mo., and defendants are young married people living on a farm near Milan in that county. They had 160 acres of land, where they lived, against which there was a first mortgage of $7,000, a second for $3,000, and a mortgage to plaintiff given in security for the note, which is the basis of this action. Besides the home farm, Oliver Kibble leased from his father-in-law, W. H. Columbar, 200 acres adjoining the home place on the south, at a rental of $700 per year. For the first year's rent defendants issued their promissory note secured by a chattel mortgage, covering certain chattels of defendants not covered by any previous pledge.

"At this time defendants' finances were considerably involved, including certain indebtedness to the plaintiff secured by chattel mortgage on 30 head of registered black cattle and some mules and horses. On or about August 12, 1922, plaintiff demanded, as additional security, a mortgage on defendants' growing crop, but this security was not given. * * * The suit on the note in question was instituted in the circuit court of Sullivan county, and by change of venue was transferred to Livingston county, where it was tried. In aider of the principal suit, plaintiff swore out an attachment in the circuit court of Livingston county, and thereunder attached and sold all of Kibble's property, including his registered cattle, horses, hogs, and farm implements. * * * The attachment was taken out in the name of plaintiff bank, but was sworn to by Lenny Baldridge, its cashier. It contains the following statutory causes of action, to wit: * * * `That the defendants have fraudulently conveyed or assigned their property or effects, so as to hinder or delay their creditors.' * * *

"There was a plea in abatement timely filed by defendants, denying specifically each cause of action stated in the affidavit for attachment. The cause [of action] was tried before a jury on the plea in abatement, resulting in a verdict for defendants, and a judgment thereon was accordingly entered. * * *

"In considering the peremptory instructions to sustain the attachment offered by plaintiff at the close of all the evidence, it is necessary to refer briefly to the evidence. Plaintiff attempted to show (1) that defendants fraudulently conveyed or assigned their property to one Columbar. This, of course, refers to the note and chattel mortgage in favor of Columbar, and, to support the charge, it must be shown that the property was fraudulently conveyed, so as to hinder and delay defendants' creditors. The evidence of defendants was to the effect that the mortgage to Columbar was given in good faith to secure a note given for a year's rent on 200 acres of land. Accepting this as true, it will not be insisted, we take it, that this evidence was not of `sufficient substantiality to take the case to the jury on the question of fraudulent conveyance of the property, so as to hinder or delay creditors."

From the foregoing it appears that while the defendants Kibble were in straitened financial circumstances, owing to the fact that both their land and their registered cattle were mortgaged for sums in excess of their value, they gave a chattel mortgage on all their remaining property to their father, purporting to secure rent on land which he leased, or had leased, to them. The issue for the jury on the plea in abatement was whether defendants in giving this chattel mortgage "fraudulently conveyed or assigned their property or effects, so as to hinder or delay their creditors." With respect to the evidence offered on the issue the opinion recites:

"Plaintiff attempted to show that defendants fraudulently conveyed or assigned their property to one Columbar. This, of course, refers to the note and chattel mortgage in favor of Columbar, and, to support the charge, it must be shown that the property was fraudulently conveyed, so as to hinder and delay defendant's creditors. The evidence of defendants was to the effect that the mortgage to Columbar was given in good faith to secure a note given for a year's rent on 200 acres of land."

The instructions given...