65 P. 444 | Idaho | 1901
This action is in the nature of a creditors’ bill, whereby creditors of defendant Conner sought to subject a certain stock of merchandise which was in the possession of appellant Lemp, to the payment of their judgments against Conner. It is alleged in the complaint: That the defendant Conner on March 25, 1896, was the owner of and in the possession of a stock of merchandise, furniture, and fixtures situated in Boise City, and was there conducting a retail mercantile business, and on that date executed to appellant, Lemp, a certain promissory note for $7,740; with interest due one day after date, and also at the same time, and for the same consideration, executed to appellant, Lemp, a written contract, marked “Exhibit ‘A.,’ ” purporting thereby to sell and convey to said Lemp said stock of merchandise. That said contract had attached thereto the affidavit and acknowledgment of defendant Conner, as required by law in case of chattel mortgage. That said contract has never been filed for record, and had been kept secret and was not disclosed to plaintiffs until after the delivery of the possession of said stock of merchandise by said Conner to appellant, Lemp, on or about the eighteenth day of November, 1896. That said possession was demanded and received under and by virtue of said contract, Exhibit “A.” That by the terms of said contract the said Conner was appointed the agent of Lemp to take charge of said property, to hold and dispose of the same in regular course of trade, and to keep up said stock of goods, as near as could be, to its then quality and value, and every six months to render an account and pay over to said Lemp all the receipts arising from the sale of any of said merchandise, less the actual expense of carrying on and operating
Counsel for respondents move this court for an order permitting them to file, as a part of the transcript in this case, to be used on this appeal, certified copies of all papers used on the hearing of a certain motion made in the court below to strike defendant Lemp’s answer from the files, which motion was denied by the court. Said motion was thereafter renewed, and denied by the court, to which ruling counsel duly excepted. When counsel for appellant presented the transcript to counsel for respondents for certification, they requested that there be attached to such transcript all papers upon which said motion was heard by the trial court, thereby making them a part of the transcript for the purpose of enabling counsel for respondents to assign the ruling of the court on said motion as a cross or counter assignment of error, which request was denied; and counsel now ask that they be permitted to file said papers as a part of this transcript, and thus enable them to present to this court a cross-assignment of errors. The exception sought to be presented in this case was not saved by the provisions of the statute, nor was it saved in a bill of exceptions. The respondents can no more have an exception reviewed on appeal than can an appellant, unless the same is saved by the statute, or saved in a bill of exceptions as provided by law. As the stat
Counsel for appellant assign as error the overruling of the demurrer to the complaint. It is contended that the complaint does not state a cause of action against appellant, from whatever view this action may be considered, or whatever view may be taken of the contract dated March 25, 1896, and marked and often referred to as “Exhibit ‘A’ ”; that the facts set out in the complaint show that the appellant was directly and primarily liable for the goods purchased between March 25, 1896, and November 18, 1896, as by the terms of said Exhibit “A” Conner was made the agent to conduct said business, and to purchase goods with which to replenish said stock of goods. That being admitted to be true for the purposes of the demurrer, it is contended that the goods having been purchased by Conner, the agent of appellant, and accepted, received, and realized on by Lemp, there was no need to follow the goods with a creditors’ bill in a court of equity, especially when Lemp is perfectly solvent; that the respondents had a plain, speedy, and adequate remedy at law in a suit upon an account against Lemp. It is also contended that a sufficient legal remedy was afforded by the statute providing for proceedings supplementary to execution, and that such proceedings are exclusive, and must be pursued in this matter. Considerable authority is cited in support of that proposition, and, no doubt, proceedings supplemental to execution must be followed, when they afford full and complete relief; but the provisions of section 4510 of the Eevised Statutes, found in chapter 2, title 9, entitled “Proceeding Supplementary to Execution,” clearly indicate that cases may arise in which such proceedings will not afford relief; and it is provided that, if the person alleged to have money or property of the judgment debtor claims an in
It is also contended that the court erred in rendering judgment against appellant for costs of procuring judgments-against Conner, as all that respondents are entitled to, at most,
It is also contended that the evidence shows that the appellant made a valid purchase of, and took possession of, said stock of goods on November 18, 1896. Upon a careful examination of the evidence, we. are of the opinion that the court did not err in finding that appellant was in the possession oi said goods as mortgagee of Conner, and that Conner was the owner thereof. It is true, the jury, by special verdict, found that on the eighteenth day of November, 1896, Conner sold and delivered to appellant the stock of goods in question. They also found that said sale was not made in good faith and for a valuable consideration. The court adopted the special findings of the jury as its own, as stated by the court, to wit, “so far as the same are not inconsistent.” We construe that expression, from the findings of the court, to mean that the court adopted the special findings of the jury so far as they were not inconsistent with the findings made by the court.
Attention is called to the fact that the instructions given to the jury treated this transaction as a sale from Conner to the appellant, and that, as the court found said transaction was not a sale, it was error to give said instructions. This court, in Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45, doubted the propriety of giving instructions in such cases. (See, also, Daly v. Josslyn, ante, p. 657, 65 Pac. 442.) As the special findings of the jury were only advisory to the court, and the court may either adopt or reject them, if they are not sustained by the evidence, they may be tested by it; and, as was said in Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781, “if erroneous conclusions are drawn from them [the findings], the question may be pre-seated