Whitney & Co. v. Brownewell

• Decision Date: 11 March 1887
• Parties: WHITNEY & CO. v. BROWNEWELL ET AL.; PEREGOY & MOORE v. THE SAME. SWEENEY & CO. v. THE SAME
• Court: Iowa Supreme Court

32 N.W. 285

71 Iowa 251

WHITNEY & CO. v. BROWNEWELL ET AL.; PEREGOY & MOORE v. THE SAME. SWEENEY & CO. v. THE SAME

Supreme Court of Iowa, Des Moines

March 11, 1887

Appeal from Plymouth Circuit Court.

THESE cases are submitted together as involving substantially the same question. The plaintiffs in the respective actions sold goods to the defendant George W. Brownewell, and the actions are brought to recover for the goods. Mrs. D. E. Brownewell wife of George W. Brownewell, and Mrs. T. E. Murphy, mother of Mrs. Brownewell, are made defendants, and are sought to be made liable, upon the ground that they were silent partners with George W. Brownewell, or, if not that they conspired with him to defraud the plaintiffs in the purchase of the goods. Writs of attachments were issued and levied upon the stock of goods which had been held by George W. Brownewell in trade, and also upon the lot and store building used in trade. Previous to the levy, George W. had conveyed the stock to Mrs. Murphy, and the lot and store building to Mrs Brownewell, and Mrs. Murphy had conveyed the stock to Mrs Brownewell in exchange for the lot and store building. Mrs Murphy and Mrs. Brownewell denied all liability for the goods purchased, and claimed damages for the wrongful issuance and levy of the attachment. George W. Brownewell made default. As against Mrs. Murphy and Mrs. Brownewell, there was a trial to a jury, and judgment was rendered in their favor for one dollar as damages for the wrongful issuance and levy of the attachment. Judgment was rendered in their favor for attorney's fees. The plaintiffs appeal.

AFFIRMED.

G. A. Girard and Ira T. Martin, for appellants.

T. B. S. O'Dea and Argo & Kelly, for appellees.

OPINION

ADAMS, CH. J.

I. The plaintiffs assign several error pertaining to the alleged liability of Mrs. Murphy and Mrs. Brownewell for the goods. We do not need to consider them. There was no evidence introduced or offered tending to show such liability, and the plaintiffs were not prejudiced by the alleged errors, if they were made.

II. The plaintiffs, by way of answer to the claim of Mrs. Murphy and Mrs. Brownewell for damages for the wrongful issuance and levy of the attachment, averred that the property levied upon had been conveyed to Mrs. Murphy and Mrs. Brownewell to defraud his creditors. To prove the fraud in the conveyance the plaintiffs had relied upon one Richards as a witness, but they were unable to procure his attendance at the trial. They accordingly made an affidavit for a continuance on account of his absence. The court held the affidavit to be sufficient, but, the defendants offering to allow the affidavit to be read as showing what the testimony of Richards would be if present, the trial was allowed to proceed. Afterwards, when the plaintiffs offered to read the affidavit in evidence, the defendants objected, and the court sustained the objection, remarking, as the abstract shows, that the facts set forth in the affidavit as to what the witness, if present, would swear to, did not appear to be material. The refusal to allow the affidavit to be read in evidence is assigned as error. If the affidavit was sufficient to entitle the plaintiffs to a continuance, as the court held, they should have been allowed to read it in evidence. But the court was not bound to allow it to be read because of the former ruling. The court might examine the affidavit again; and, if it appeared from the second examination that the facts shown as to what the witness would...