Steele v. Brazier

• Decision Date: 06 December 1909
• Parties: W. H. STEELE, Respondent, v. W. H. BRAZIER, Appellant
• Court: Missouri Court of Appeals

123 S.W. 477

139 Mo.App. 319

W. H. STEELE, Respondent, v. W. H. BRAZIER, Appellant

Court of Appeals of Missouri, Springfield

December 6, 1909

[Copyrighted Material Omitted]

Appeal from Webster Circuit Court.--Hon. Argus Cox, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--This suit was commenced in the circuit court of Howell county by filing a petition and an affidavit for attachment on the 30th day of November, 1907, a copy of which affidavit for attachment is as follows (caption omitted):

"This affiant, Guy C. Barr, being first duly sworn on his oath states that he is attorney and authorized by the plaintiff in the above entitled cause, to make this affidavit for an attachment therein, that said plaintiff W. H. Steele has a just demand against the defendant herein.

"That the amount which this affiant believes he ought to recover after allowing all just credits and setoffs, is one thousand and forty dollars; and that this affiant has good reasons to believe and does believe.

"That the defendant conceals himself so that the ordinary process of law cannot be served upon him.

"That the defendant has absconded and absented himself from his usual place of abode in the State of Missouri, so that the ordinary process of law cannot be served upon him.

"That the defendant is about to remove his property and effects out of the State of Missouri, with the intent to change his domicile.

"That the defendant has fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors.

"That the defendant has fraudulently concealed, removed and disposed of his property and effects so as to hinder and delay his creditors.

"That the defendant is about fraudulently to convey and assign his property and effects so as to hinder and delay his creditors.

"That the defendant is about fraudulently to conceal, remove and dispose of his property and effects so as to hinder and delay his creditors.

"That the debt herein sued for was fraudulently contracted on the part of the debtor the defendant herein."

Afterward on the 23d day of March, 1908, the defendant filed a counter-affidavit in the nature of a plea in abatement denying the grounds for attachment alleged in said affidavit, which is in words and figures as follows (caption omitted):

"Now comes the defendant, W. H. Brasier, and says that the plaintiff ought not to have and maintain the proceedings in attachment in this cause against him because the defendant says that the grounds for attachment set forth in the affidavit for attachment are untrue as follows: It is not true as alleged in the affidavit upon which attachment was issued:

"That the defendant conceals himself so that the ordinary process of law cannot be served upon him.

"It is not true: 'That the defendant has absconded and absented himself from his usual place of abode in the State of Missouri, so that the ordinary process of law cannot be served upon him.'

"It is not true: 'That the defendant is about to remove his property and effects out of the State of Missouri with the intent to defraud, hinder and delay his creditors.'

"It is not true: 'That the defendant has fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors.'

"It is not true: 'That the defendant has fraudulently concealed, removed or disposed of his property and effects so as to hinder and delay his creditors.'

"It is not true: 'That the defendant is about fraudulently to convey and assign his property and effects so as to hinder and delay his creditors.'

"It is not true: 'That the defendant is about fraudulently to conceal, remove or dispose of his property and effects so as to hinder and delay his creditors.'

"It is not true: 'That the damages for which this action is brought are for injuries arising from the commission of a felony by the defendant herein.'

"It is not true: 'That the debt herein sued for was fraudulently contracted on the part of the debtor, the defendant herein.'

"Wherefore, the defendant asks that the attachment abate and be dissolved at the cost of the plaintiff and bondsmen."

On the 10th day of August, 1908, in the Howell Circuit Court, the plaintiff asked and obtained leave to file an amended petition, which was filed on said date.

Plaintiff stated for his cause of action in this first amended petition that the defendant, with the intent to cheat and defraud the plaintiff and other parties therein mentioned, fraudulently represented that he was the owner in fee of ten thousand acres of valuable land in the counties of Howell, Ozark and Douglas, that several hundred acres of the land was well improved with valuable residences and barns, that there were many valuable springs and wells on the land, and that these representations were made as a part of a scheme to cheat and defraud the plaintiff and the other parties mentioned; that in order to carry out the said scheme, the defendant had literature circulated containing representations of the existence of valuable farms on this tract of land, and stating that each and every shareholder purchasing of him under said scheme would have conveyed to him in fee simple a portion of the said lands, being not less than two town lots and not more than one hundred and sixty acres; that plaintiff and others believed the said representations, were deceived thereby and were induced to purchase twenty-nine shares at $ 40 each; that the other parties purchasing assigned their shareholders' contracts to this plaintiff; that the defendant did not have the lands such as he represented; that his representations as to such lands were false and fraudulent and misled the plaintiff and the other parties; that by reason of such fraudulent representations, he was damaged in the sum of $ 1,160 for which he asked judgment.

On the 17th day of August, 1908, in the circuit court of Howell county, the plea in abatement coming on for trial, the plaintiff offered evidence tending to sustain the allegations of his petition, and the testimony of the plaintiff, W. H. Steele, was heard. At the conclusion of the evidence offered by the plaintiff to sustain the attachment, the defendant offered no evidence, but filed a demurrer to the evidence and assigned the following grounds:

"First: That there is no substantial evidence to support the grounds alleged for the attachment; nor any one of such grounds.

"Second: There is no substantial evidence that the plaintiff or any other of the alleged subscribers for shares in the Siloam Springs Colonization Company were misled and induced to subscribe for such shares, by any false and fraudulent representations by the defendant.

"Third: The evidence on the part of the plaintiff shows that he and the other alleged subscribers were engaged in a lottery scheme, which is contrary to public policy and the alleged shares purchased by them were intended to be used by them as mere evidence of a right to share in a lottery.

"Fourth: There is no substantial evidence that any alleged representations of fact made by the defendant were false and known to be false by the defendant at the time of such subscriptions.

"Fifth: The evidence on the part of the plaintiff shows that the inducement of the subscriptions aforesaid was the chance of drawing one of the capital prizes in a lottery."

This demurrer was overruled by the court and the defendant excepted.

The issues on the plea in abatement were tried by the court without a jury, and the court found for the plaintiff on the last ground for attachment alleged in the affidavit--the fourteenth subdivision of the statute--that the debt for which the suit was brought was fraudulently contracted by the defendant. Judgment was rendered overruling the plea in abatement and sustaining the attachment as to said last-mentioned ground. The defendant filed a motion for a new trial and a motion in arrest, and these being overruled, the defendant below has perfected his appeal to this court on the judgment sustaining the attachment.

Afterward, on August 25, 1908, the defendant filed an affidavit for a change of venue which was approved by the court, and the cause was removed to the circuit court of Webster county. The same came on for trial on March 17, 1909, and plaintiff filed a second amended petition which is in substance as follows: Plaintiff alleged that the defendant was engaged in doing business under the name of the Siloam Springs Colonization Company, and that on or about the 24th day of February, 1906, in consideration of the sum of $ 80 paid him by the plaintiff, the defendant executed and delivered to the plaintiff two shareholders' contracts for deeds, both of which are in words and figures as follows:

"THE SILOAM SPRINGS COLONIZATION COMPANY, Kansas City, Mo.

"This certifies that W. H. Steele is the owner of one share of forty dollars each being one undivided one five-thousandth interest in ten thousand acres in Howell, Douglas and Ozark counties, Missouri, owned by the Siloam Springs Colonization Company.

"The Siloam Springs Colonization Company hereby agrees to redeem and cancel this certificate by deeding ten thousand acres to the shareholders in tracts as they themselves may elect; the same, however, not to be in violation of the laws of the United States or Missouri.

"In Witness Whereof, the said Company has caused this certificate to be signed by the general manager and to be sealed by the company seal at Kansas City, Missouri, this, the 24th day of February, A. D. 1906.

"W. H. BRASIER, General Manager."

For a second and further cause of action, plaintiff stated that on or about the day of , 1906 in consideration of the sum of one hundred and twenty dollars paid by W. J. Vannix, the defendant...