Diefendorf v. Oliver

8 Kan. 365 | Kan. | 1871

The opinion of the court was delivered by

Yaíentine, J.:

The plaintiff in error Fox Diefendorf complains of a judgment rendered against him in the court below in favor of the defendant in error Henry A. Oliver. The facts are substantially as follows: On the 2d of August, 1867, there was a suit pending in the district court of Jefferson county in which Fox Diefendorf was plaintiff and Alex. W. Eobb was defendant. On that day said Oliver and Anna Eobb were summoned to answer as garnishees in said suit. They answered, but their answers were not satisfactory to Diefendorf. Hence he proceeded with said suit until he obtained a judgment against Alex. W. Eobb for $3,326 and costs, and then commenced the present action against all the defendants in error jointly for that amount and interest .and costs. We suppose he claims to recover from Alex. W. Eobb as the original debtor, and to recover from Anna Eobb and Henry A. Oliver as garnishees in the other suit. The case was tried by the court without a jury, and special findings were made; and upon these findings the court rendered a judgment in favor of Diefendorf and against the two Eobbs jointly for $3,558.82 and costs, and also rendered a judgment in favor of Oliver and against Diefendorf for costs, and this is the judgment of which Diefendorf now complains.

The facts upon which Diefendorf claims that Oliver is liable as garnishee are as follows: On the 17th of July, 1867, Oliver bought some goods of Alex. W. Eobb and gave therefor four negotiable promissory notes, each for $1,125, payable to Anna Eobb the wife of Alex. W. Eobb. Said notes to become due in three, six, nine, and twelve months, respectively, from that time. The first two of said notes were paid before Oliver was garnisheed, and the other two were paid afterwards. On the first day of August 1867, (one day before garnishment,) these notes were indorsed by Anna Eobb to her son Charles J. Eobb, and about March, 1868, they were indorsed by him to A. M. Cowan. On May 4th, 1868, Oliver paid the amount of these two last mentioned notes to Cowan. When Oliver was garnisheed both of these notes were in the hands of Charles J. Eobb, and neither of them was due. When this suit was commenced, (January 31st, 1868,) they were still in the hands of Charles J. Eobb, and neither note was then due; nor’was either note yet due when the two notes were assigned to Cowan. When the trial was had in this case both notes were due and paid in full.

The court below found that the sale of said goods was made by the Eobbs with the intent to defraud Alex. W. Eobb’s creditors, and the court also found some facts that would tend to show that the assignment of the notes by Anna Eobb to her son was also fraudulent. But the court also found that Oliver acted in good faith during the whole transaction; that he had no notice of the fraudulent intent of the Eobbs. The first complaint of the plaintiff in error is, that this last-mentioned finding is against the evidence, and is therefore erroneous. We are of a different opinion however. We think this finding is established by abundant evidence, and is therefore correct.

The second and only other complaint of the plaintiff in error is, that, taking the facts as established, still the judgment of the court below is nevertheless erroneous. Again we think the plaintiff in error is mistaken. If Oliver is liable at all as garnishee it must be because he at the time he answered as garnishee had property in his hands belonging to Alex. "W". Eobb, or because he at that time was indebted to Alex. W. Eobb. First: Had he property belonging to Alex. W. Eobb in his possession? He probably had the goods or a portion of them which he bought of said Eobb; but the evidence hardly shows that the goods ever belonged to Alex. W. Eobb. The evidence rather tended to show that they belonged to Anna Eobb when Oliver bought them. But suppose they belonged to Alex. W. Eobb when Oliver bought them; still, Oliver was an innocent and bona fide purchaser, without any notice of the fraudulent intentions of the Eobbs, and therefore he obtained a good and absolute title to them, legal and equitable, and no creditor of Eobb’s had any right to question his title. 8eeond: Was Oliver indebted to Alex. "W. Eobb ? In a transaction in which Oliver acted in entire good faith he purchased some goods which he supposed belonged to Anna Eobb, and with the consent of Alex. W. Eobb, from whom he purchased them, he gave in payment therefor his negotiable promissory notes to Anna Eobb, two only of which notes remained unpaid at the time he was garnisheed, and these two were not yet due. Hnder these circumstances we do not think he was indebted to Alex. W. Eobb. His answer when he was garnisheed, “ that he was not indebted to Alex. W. Eobb,” was correct. On such notes as these he was not liable to be garnisheed by the creditors of Alex. W. Robb. The judgment of the court below is affirmed.

Kingman, O. J., concurring. Brewer, J., not sitting in the ease.