Winter v. Kirby
| Decision Date | 15 December 1900 |
| Citation | 60 S.W. 34 |
| Parties | WINTER et al. v. KIRBY et al. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.
Action on notes by Winter & Schott against J. F. Kirby & Co. From a judgment dissolving an order of attachment, the plaintiffs appeal. Reversed.
Scott & Jones, for appellants. Kirby & Carter, for appellees.
On the 20th September, 1893, the plaintiffs, Winter & Schott, a firm of merchants composed of Joseph Winter and Max Schott, doing business in Texarkana, Ark., sued the defendants, J. F. Kirby & Co., a firm of sawmill men composed of J. F. Kirby, J. G. Brickley, and J. J. Kirby, doing business in Bowie county, near the city of Texarkana, on two promissory notes, the one dated 13th June, 1893, and due 60 days after date, for the sum of $910, with interest at the rate of 10 per centum per annum from maturity until paid, upon which there was a credit of $266.40, dated August 22, 1893, and another promissory note for the sum of $456.10, dated July 14, 1893, due 60 days after date, and bearing interest at the rate of 10 per centum per annum from maturity until paid, upon which nothing had been paid. Both notes were made payable at the Texarkana National Bank, Tex., both provided for the payment to the holder of reasonable attorney's fees in case it should be necessary to bring suit thereon for their collection, and both were shown to be Texas contracts, in which state it was alleged and shown such provision for attorney's fees was allowable. At the same time an affidavit for an order of attachment was filed by plaintiffs, bond given, and the order issued, and in due course levied upon certain real estate in Arkansas belonging to the defendant firm, and to J. F. Kirby, the principal member thereof and manager of its business. Said affidavit, omitting unnecessary parts, is as follows: "The claim in this action against the defendants, J. F. Kirby & Co., is for money due upon two certain promissory notes; that it is a just claim; that plaintiffs, as they believe, ought to recover thereon the sum of $1,210.19; and that defendants have removed a material part of their property out of this state, not leaving enough therein to satisfy plaintiffs' claim and the claims of defendants' creditors." Nothing more appears to have been done in this suit until the 11th day of December, 1894, about 15 months after the institution thereof, when defendants filed their motion to discharge the attachment, and at the same time answered, denying the truth of the affidavit of plaintiffs, and averring that some of the property attached was the individual property of J. F. Kirby; that he was manager of the defendants' business, and that defendants had been damaged in the sum of $5,000 by the wrongful issuance of the attachment, and prayed judgment; that said firm was not indebted to plaintiffs in any sum as claimed; that J. F. Kirby himself had fully settled all of said indebtedness, by agreeing to judgments with attachment liens sustained for the sum of $2,946.57, in a suit of plaintiffs against them in the Bowie county, Tex., district court, and securing said sum by his notes secured by his property in Miller county, Ark., and by paying all costs in this and the said Texas suit, in consideration that this suit be dismissed, and these defendants had fully complied with their part of said agreement. Wherefore defendants pray judgment for the dissolution of the attachment, for damages claimed, and for general relief. At the same time defendants file their motion to strike out "the motion of plaintiffs to reinstate and to dismiss." The record does not state what was done with this motion, nor does it disclose that there was ever such a motion by the plaintiffs to reinstate, and the motion to strike out has no explanation in the record, and no further notice was taken of it. Nor does the record show that such agreement was made, but, on the contrary, that a judgment by confession in the Texas case was entered on the 4th April, 1894, and a stay of execution was entered for six months. On the 13th December, 1894, plaintiffs filed an amendment to their original affidavit for the order of attachments, in the following words, to wit: "That defendant J. F. Kirby, prior to the institution of this suit, had removed a material part of his property out of the state of Arkansas, not leaving enough therein to satisfy plaintiffs' claim and the claims of said defendants' creditors;" to which the defendant J. F. Kirby filed his counter affidavit on the 7th February, 1895. On the 6th June, 1895, a jury trial was had on the question of the debt, and the same resulted in a verdict and judgment for the plaintiffs in full amount of their claim, and the defendants excepted, and prayed and were granted an appeal, but nothing further was done in the prosecution of this appeal, no bill of exceptions was filed, and the term of the trial court lapsed. The judgment on the debt having been rendered, the trial of the issue in the attachment part was postponed, and on the 9th September, 1895, plaintiffs filed a second amendment to their affidavit for the order of attachment, assigning the following ground for attachment, to wit: "That immediately prior to the institution of this suit defendants were about to sell, convey, or otherwise dispose of their property with the fraudulent intent to cheat, hinder, and delay their creditors." To this defendants filed their controverting affidavit on the 12th September, and reiterate, in substance, their defense to the action on the debt, suggesting a filing of a bill of exceptions at the proper time, it is said with the approval of the court. On the 10th September, 1895, plaintiffs filed their supplemental complaint, reciting, in substance, the proceedings in the Bowie county, Tex., district court, referred to by defendants in their answer to the complaint in this action, and seemingly declare upon said Texas judgments. The trial court appears to have ignored all these efforts to reopen the controversy over the debt, and at the November term following a trial was had on the issue made by the affidavits in attachment, resulting in a judgment by the court in favor of the defendants, and a dissolution of the order of attachment, from which plaintiffs, in due form and in due time, appealed, and the assessment of damages was postponed until the next succeeding term of the court.
The only question, therefore, before us is the rightful or wrongful issuance and levy of the order of attachment, and this issue is further narrowed by the abandonment by the plaintiffs of the first ground of the attachment, or, rather, the ground assigned in the original affidavit and the first amendment thereto; and the only question remaining is whether or not, immediately prior to the institution of this suit, the defendants were about to dispose of their property with the fraudulent intent to cheat, hinder, and delay their creditors.
The evidence shows that on the 20th September, 1893, some time during the day, the defendants' milling plant, near the city of Texarkana, in Bowie county, Tex., was destroyed by fire; that upon this property defendants held policies of insurance aggregating the sum of $5,000, which appears the only cash assets in the firm of any particular consequence; that between 7 and 8 o'clock p. m. of that day the defendants, with some of their creditors, had a meeting in the office of the Texarkana, Tex., National Bank, for the purpose of determining what to do under the circumstances. It was shown that there were debts amounting to more than $18,000 at the time, and that the assets of the firm and the members thereof consisted in a considerable quantity of timber lands from which the merchantable timber had been largely cut, and some railroad track, etc. It was finally determined that the best thing to be done was the making of a general assignment by the firm, and all the members thereof, of all their property, real, personal, and mixed, including choses in action and evidences of debt, to a trustee for the benefit of their creditors, which was accordingly done, ____ being named as assignee....
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