Zeman v. Steinberg

• Decision Date: 09 December 1899
• Parties: ZEMAN et al. v. STEINBERG. [1]
• Court: Kentucky Court of Appeals

54 S.W. 178

ZEMAN et al. v. STEINBERG. ^[1]

Court of Appeals of Kentucky.

December 9, 1899

"Not to be officially reported."

Former opinion withdrawn, and new opinion substituted. For former report, see 52 S.W. 821.

WHITE J.

The opinion heretofore filed on September 23, 1899, is withdrawn. This action was brought in the Jefferson circuit court April 7, 1894, to establish a preference under the act of 1856, and to declare that that preference operated as an assignment. The preferential acts are alleged to be levy of attachment on October 7, 1893, brought about by collusion and agreement. This collusion and agreement were made between appellee Steinberg, and Solomon Goldstein, as partners under the firm name and style of Goldstein & Steinberg, and certain of their creditors, viz. Wise Bros. and S. A. Castle & Co. These creditors of the firm of Goldstein & Steinberg, together with Harry Stucky, assignee for the benefit of creditors, are made parties defendant. On this appeal, however, only Julius Steinberg is made party appellee by the statement required and is the only party attempted to be brought before the court by summons on appeal. In the circuit court a demurrer to the petition was sustained for the reason that on the face of the petition the action was begun too late by one day. The statute (Ky. St. § 1911) permitting this action reads "All such transfers as are herein declared to inure to the benefit of creditors generally shall be subject to the control of courts of equity, upon the petition of any person interested, filed within six months after the mortgage or transfer is legally lodged for record, or the delivery of the property or effects transferred." This exact question was decided by this court in the case of Lebus v Wayne-Ratterman Co., 21 S.W. 652. It was there held that an action begun March 22, 1887, after a lodgment of a preferential mortgage September 22, 1886, was too late. By an amended petition, appellants allege that the attached property was not transferred or delivered until after November 22, 1893, when judgment was rendered subjecting it to sale. The act of preference, if such there was, was the levy on the 7th day of October of the attachment, and the six months began that day. It is the lien of the attachment created by the levy, like the lien of the lodged mortgage that marks the beginning of the time fixed by the statute. This question was decided by the superior...