Winter v. Kirby

• Decision Date: 15 December 1900
• Citation: 60 S.W. 34,68 Ark. 471
• Parties: WINTER v. KIRBY
• Court: Arkansas Supreme Court

60 S.W. 34

68 Ark. 471

WINTER v. KIRBY

Supreme Court of Arkansas

December 15, 1900

Appeal from Miller Circuit Court, RUFUS D. HEARN, Judge.

Judgment reversed and cause remanded.

Scott & Jones, for appellant.

Parol evidence of facts collateral to those stated in the instrument is admitted to show their full intention. 52 Ark 30, 42; 42 Me. 435; 39 Mich. 565. Both instruments will be considered as one transaction. 5 Ala. 324. The court will not look outside of the deed to determine whether there was enough property to pay all debts. 47 Ark. 367. The transfer of policies must have been absolute, else void. 47 Ark. 347; 46 Ark. 405. Acts done subsequently to the transaction may be considered in determining the original intention. 41 Ark 192. A colorable conveyance from father to son is void. 24 Ark. 410. The first instruction asked by appellants should have been given. 47 Ark. 367; 53 Ark. 88; 47 Ark. 347. Fraud may be conclusively presumed.41 Ark. 188,192;44 P. 447; 19 F 70.

Kirby & Carter, for appellees.

There were no assets withheld, and no reservation of surplus or benefit. 47 Ark.347; id. 367; 59 Ark. 54. Fraud can never be presumed. Burrill, Ass. § 340-1; 38 Ark. 419. A threat to make an assignment furnishes no evidence of an intended fraudulent disposition of property. 53 Ark. 329; 55 Ark. 329.Appellees have a right to transfer the policies of insurance.56 Ark. 417. And the same would have been legal had they been insolvent. 52 Ark. 441. There being evidence to sustain the verdict, the court will not disturb the judgment.46 Ark. 142; 51 Ark. 466; 56 Ark. 314. Finding of the trial judge is as conclusive as a verdict of a jury. 55 Ark. 329;53 Ark. 161; 60 Ark. 267. The transcript not containing all the evidence, this court must presume there was sufficient evidence to support the findings. 54 Ark. 159; 44 Ark. 74; 43 Ark. 151; 45 Ark. 240. The note sued on herein was included in the judgment pleaded, and cannot be made the basis of another action. 2 Black, Judg. § 864, 876, 674; Freeman, Judg. §§ 218, 221, 249, 791; 1 Herman. Estop. §§498, 572, 124; 2 id. § 1267; 29 Ark. 80,472; 43 Ark. 232; 76 Hun, 424.

Scott & Jones, for appellants in reply.

Stipulation of counsel and signature of judge establish bill of exceptions. Sand. & H. Dig., 9 5848. The bill of exceptions sufficiently shows all the declarations of law given and refused. 36 Ark 496; 49 Ark. 365, 55 Ark. 329. Not applicable to facts in this case. See 59 Ark. 64.

BUNN C. J. WOOD. J., not participating.

OPINION

BUNN, C. J.

On the 20th September, 1893, the plaintiffs, Winter & Schott, a firm of merchants, composed of Joseph Winter and Max Schott, doing business in Texarkana, Arkansas, sued the defendants, J. F. Kirby & Co., a firm of saw-mill 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 ten 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 ten per centum per annum from maturity until paid, upon which nothing had been paid. Both notes were made payable at the Texarkana National Bank, Texas. Both provided for the payment to the holder of reasonable attorney's fees, in case it should be necessary to bring suit thereon for its collection, and both were shown to be Texas contracts, in which state it was alleged and shown that such provision for attorneys' fees were 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 plaintiff's claim and the claims of defendant's creditors."

Nothing more appears to have been done in this suit until the 11th day of December, 1894, about fifteen 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, Texas, district court; and securing said sum by his notes secured by his property in Miller county, Arkansas, 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 prayed judgment for the dissolution of the attachment, for damages claimed, and for general relief. At the same time defendants filed their motion to strike out "the motion of plaintiffs to re-instate and 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 re-instate, 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 of 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 attachment, 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' claims 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, 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 re-iterated, 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, Texas, 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, sometime during the day, the defendants' milling plant near the city of Texarkana, in Bowie County, Texas, 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 (Texas) National Bank for the purpose of determining what to do under the circumstances. It was shown that there were debts...