Tootle v. Coldwell

• Citation: 1 P. 329,30 Kan. 125
• Court: United States State Supreme Court of Kansas
• Decision Date: 01 January 1883
• Parties: TOOTLE, HOSEA & CO. v. COLBERT COLDWELL.--JOHN PHILLIPS AND R. B. GRANT, Copartners Doing Business as Phillips, Grant & Co., v. COLBERT COLDWELL.--W. L. REED AND DANIEL B. CLOSSON, Partners under the Firm-Name of Reed & Closson, v. COLBERT COLDWELL.--THE GEISECKE BOOT AND SHOE MANUFACTURING COMPANY, a Corporation Duly Authorized and Incorporated Under the Laws of the State of Missouri, v. COLBERT COLDWELL

1 P. 329

30 Kan. 125

TOOTLE, HOSEA & CO. v. COLBERT COLDWELL.--JOHN PHILLIPS AND R. B. GRANT, Copartners Doing Business as Phillips, Grant & Co., v. COLBERT COLDWELL.--W. L. REED AND DANIEL B. CLOSSON, Partners under the Firm-Name of Reed & Closson, v. COLBERT COLDWELL.--THE GEISECKE BOOT AND SHOE MANUFACTURING COMPANY, a Corporation Duly Authorized and Incorporated Under the Laws of the State of Missouri, v. COLBERT COLDWELL

Supreme Court of Kansas

January 1, 1883

Error from McPherson District Court.

FOUR actions, severally, by Tootle, Hosea & Co., Phillips Grant & Co., Reed & Closson, and The Geisecke Boot and Shoe Manufacturing Company, against Coldwell. January 27 1883, the district court, in each case, dissolved the attachment which had been issued therein, which rulings the plaintiffs have brought here.

Judgment affirmed.

Walter & Earle, John D. Milliken, D. O. Barker, and T. F Garver, for plaintiffs in error.

Simpson & Bowker, and C. Coldwell, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

In January, 1883, several actions were commenced against Colbert Coldwell by certain of his creditors, among which actions are the following: Tootle, Hosea & Co. v. Colbert Coldwell; John Phillips and R. B. Grant, copartners doing business as Phillips, Grant & Co., v. Colbert Coldwell; W. L. Reed and Daniel B. Closson, partners under the firm-name of Reed & Closson, v. Colbert Coldwell; and The Geisecke Boot and Shoe Manufacturing Company, a corporation duly authorized and incorporated under the laws of the state of Missouri, v. Colbert Coldwell. In each of these actions an order of attachment was issued.

In the first action, the grounds for the attachment are stated in the plaintiffs' affidavit as follows:

"That the said defendant has sold, conveyed and otherwise disposed of his property, with the fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts.

"Affiant further states that the defendant is about to make such sale and conveyance and disposition of his property with such fraudulent intent, and is about to remove his property, or a material part thereof, with the intent and to the effect of cheating and defrauding his creditors, and of hindering and delaying them in the collection of their debts."

In the second action, the ground for the attachment are stated in the plaintiffs' affidavit as follows:

"That said defendant is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; and is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; and is about to assign, remove and dispose of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors; and has assigned, removed and disposed of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors; and has mortgaged his property, with the fraudulent intent to hinder and delay his creditors in the collection of their debts."

In the third and fourth actions, the grounds for the attachments are precisely the same as the grounds in the second action, except the words, "has mortgaged his property with the fraudulent intent to hinder and delay his creditors in the collection of their debts," are omitted, and the words, "has property and rights in action which he conceals," are inserted.

Afterward the defendant filed a motion in each of these actions to dissolve the attachment therein, upon the ground that the grounds set forth in the affidavit for the attachment were not true. These motions were all heard at the same time and upon the same evidence; and upon such evidence the court made the following findings of fact and law in each case, to wit:

"FINDINGS OF FACT BY THE COURT.

"1. On January , 1883, the plaintiffs herein and some seven other trade creditors commenced suits in this court on valid claims of indebtedness, and in a proper manner procured attachments on them, the writs of which were levied on a certain lot of goods theretofore belonging to defendant, but at the time of the levy they were in the possession and control of certain mortgagees, hereinafter named, of defendant. The defendant then denies on oath the truthfulness of the grounds for attachment, as set forth in the several affidavits, and files thereon his motion to discharge the several attachments, which motions, by agreement of counsel were tried all together, the proofs introduced applying to all.

"2. The proofs introduced upon said motions show substantially the following material facts, stating them in the order of time and in the order as introduced principally: The defendant is sixty years of age, a lawyer by profession lived in Texas during the late rebellion, at the end of which he became a district and afterward one of the supreme judges of the state. In 1873 he accepted the position of United States collector of customs, and was stationed at El Paso, Texas. At the end of four years in this office, he resigned, and in May, 1877, removed to Winfield, Kansas, to settle in the practice of his profession. At this time of leaving Texas and coming to Kansas, he had in cash between $ 7,000 and $ 8,000, which he had saved from his professional earnings since the war. He understood and believed that, under the laws of Texas when this was earned, one-half of it belonged to his wife, the name of which personage is Martha J. Coldwell. He so told her, and that as they were getting along in years, she had better take her share, that she might always be provided with enough to make her a home. He so gave it to her, and at which time he was owing no one. She so accepted it, and on settling at Winfield, Kansas, she bought with a portion of this money some town lots and built thereon a residence, consuming thereby the most of this share so given to her in money. This property was the family homestead of defendant while living at Winfield--occupied and used continuously as such, but always known, understood and called by the family as the property of the wife. The deed was taken in her name and duly put upon record. The defendant's practice here (at Winfield) was not very lucrative; some of his daughters were married and settled, and altogether his expenses were considerable, until in the summer of 1880 he found his share of the property so brought to Kansas expended and gone, together with $ 1,000 cash which his son William had given him on leaving Texas to loan for him, which sum ($ 1,000) it seems was the savings from personal earnings of said son William; was so extended to his father and given in cash, and for which his father gave a receipt of some character, and which sum was loaned by defendant at Winfield in son's name for a while, but afterward was used by defendant as aforesaid. During the summer of 1880, some of the friends of defendant advised him to engage somewhere in the boot-and-shoe business. He talked the matter over with his wife, and they thought it would be better for him to engage in some mercantile business. But defendant had no property or money with which to do so. They concluded at last that the wife would sell the said homestead and let him have the money to so embark in business. She did so, getting $ 2,250 cash, and loaned it to her husband, he giving her shortly after a promissory note therefor, due one day after date. He took this money and engaged in the boot-and-shoe business in McPherson, Kansas, renting a building and buying his first bill of goods in August, and immediately afterward opening his establishment. From that date till August, 1882, we know but little of his business, save that there had been some net profit in it. In said August he had a stock of about $ 3,300 and was owing the trade about $ 1,200. He intended to do a cash business, but had open accounts with friends or persons he knew. There was a very large wheat crop in McPherson county in 1882. The county seemed to be prospering and growing, and the defendant thought he would do a large business during that fall and winter. He consequently bought largely of goods which were shipped to him and had in store, and he also sampled other goods and made lists, that he might order them if necessary--that is, if his sales and business demanded. The fall and early winter however brought very mild weather, and, contrary to defendant's said plans and expectations, sales were no larger than ordinary--that is, no larger than they had been in the preceding years at like season. Things were thus running when, on the 20th of December, 1882, Mr. Waller, an attorney at law at McPherson, called on defendant and presented the claim of plaintiffs herein for payment, about $ 150 of which was then due and the balance not due. The trade collections against the defendant had generally come through the banks. Defendant told Mr. Waller his sales had not been as large as he anticipated when ordering his fall stock of goods, and that he could not then pay him, and that he asked for an extension. Mr. Waller demanded security by chattel mortgage. The defendant said to do that was an act of bankruptcy, and if he took that course he would have at once to stop business. At the suggestion of a son of defendant (clerking in the store), the defendant then offered to turn out goods to satisfy the claim, and mostly of the very goods purchased of plaintiffs. This was refused, and cash or mortgage or bankable security required, which was alike refused, it not being the habit of defendant to ask others to become his security, and he thought then he would not give mortgages. On this very date the value of the stock...