73 Mich. 385 | Mich. | 1889
On December 20, 1886, George P. Gore sued out of the circuit court of Berrien county a writ of attachment. The writ was placed in the hands of the sheriff of said county, and he levied the same upon a stock of boots, shoes, etc., of the defendant. Issue was joined in the cause, and upon a trial had therein on April 25, 1887, judgment was rendered in favor of the plaintiff and against the defendant for the sum of $296.43.
It appears that after the writ of attachment had been served, and the goods taken by the sheriff, the defendant in the writ, Hiram "W. Pay, made a petition to a circuit court commissioner of Berrien county for a dissolution of the writ. A hearing was had upon the petition before the commissioner, who made an order dissolving the writ. From this order Gore appealed to the circuit court for Berrien county, and the cause was brought on for hearing in said court on April 28, 1887, before a jury, who returned a verdict in favor of the petitioner, dissolving
The cause comes to this Court by certiorari to review those proceedings. The principal allegation of error stated in the affidavit for the writ of certiorari is:
“The court erred in taking further cognizance of this proceeding for the dissolution of the attachment after it was shown that judgment had been previously rendered and entered in the principal cause commenced by said writ."
Error is also alleged upon certain portions of the charge of the court and the refusal of the court to give respondent’s requests in charge to the jury. The charge in the affidavit upon which the writ of attachment issued is—
“That deponent has good reason to believe, and does believe, that the said Hiram W. Ray is about to dispose of his property with intent to defraud his creditors."
This allegation in the affidavit for the writ of attachment is denied in the petition for the dissolution of the writ of attachment.
It appeared on the proceeding to dissolve the writ in the circuit court that Gore was doing business in the city of Chicago, and that Ray was engaged in a retail business at St. Joseph, in Berrien county, this State, during the year 1886. Gore sold to Ray during that year several bills of goods, aggregating about 8673.49. While Ray was owing Gore for these goods, he executed a chattel mortgage upon his stock; and, this fact coming to the knowledge of Gore, he sent his agent out from Chicago to investigate Ray’s financial condition. The agent arrived at St. Joseph on Saturday evening, December 18, 1886, about 7 o’clock, and it is claimed by the respondent that an agreement was then made between the agent and Ray and his attorneys that they would
“ Whereas, Hiram W. Ray, has this day given me a certain mortgage in the sum of $380.28, this memorandum witnesseth that the said Ray is to pay me, according to the conditions of said mortgage, said sum, and I am to pay such sum, when so paid to me, to the following-named persons, creditors of said Ray, immediately on the receipt thereof; it being understood that said Sesser takes no obligation upon himself other than the faithful execution of said trust, to wit: [Here follow the names of the persons and the amount to be paid to each.] Such mortgage being taken by said Sesser on the assurance of said Ray that the above-named indebtedness is dona fide. Should only a part of said sum be paid said Sesser, such part is to be paid pro rata to each of said creditors.”
The respondent, to sustain the allegation in the affidavit for the writ that “ the -defendant is about to dispose of his property with intent to defraud his creditors,” offered in evidence the said eight chattel mortgages, together with the mortgage so executed by Ray to Sesser. Respondent also called Ray as a witness, who testified that he
At the close of the testimony the respondent requested the court to charge the jury:
“1. The jury are instructed that the plaintiff, Gore, Ras obtained judgment in his suit by attachment; that a judgment has been rendered in the principal case, and that therefore these proceedings are superseded by the rendition of such judgment, leaving nothing to be tried in the matter now before the jury; and that the verdict should be for the respondent.
“2. The jury are instructed that the rendition of judgment in the principal case dissolved the attachment by which the suit was commenced, and that therefore the verdict of the jury should be for the respondent.
“3. The jury are instructed that where an application is made to dissolve an attachment, which has been issued as commencement of suit and levied upon defendant’s property, and issued upon the ground that the defendant has disposed of his property, or is about to do so, to •defraud his creditors, the principal question is one of intent. And in this case, if the jury find from the evidence that Ray intended by these mortgages to defraud his creditors, then their verdict should be for the respondent.
“ 4. The jury have heard the testimony of Ray in his own behalf, in which he says that these mortgages were given to shut off the attachment suit which he appre*390 hended Gore was about to commence. If the jury believe his statements, or find from the other testimony in the case that such was the fact, then their verdict should be for the respondent.
“5. It appears as an undisputed fact that Ray created an additional indebtedness from himself to Wells on the morning of December 20, or the day the writ of attachment was issued, and embraced this additional indebtedr ness in his mortgage to Wells, given on that date. This was fraudulent as to the creditor Gore, and your verdict should be for the respondent.”
These requests the court refused to give in charge to the jury, and, as we think, very properly.
The fact that a judgment had been rendered in favor of the plaintiff on the merits of the case for the amount of the debt claimed to be due, could in no manner affect the right of the defendant in the attachment to his order for a dissolution of the writ. The petition made by the defendant in the writ before the commissioner put the matter in issue stated in the affidavit for the writ, that the “defendant was about to dispose of his property with intent to defraud his creditors,” and the burden was upon the plaintiff in the writ to establish that fact in the proceedings under the petition for a dissolution, and, failing in this, the defendant in the writ had the right to have the writ dissolved. These proceedings are not superseded by a rendition of judgment in the case, and the defendant has a right to a hearing upon the issue made, unless he has in the mean time voluntarily parted with his right to the possession of the property, or by some other act estopped or debarred himself from insisting upon a dissolution. Drs. K. & K. Med. & Surg. Association v. Printing Co., 58 Mich. 487 (25 N. W. Rep. 477); Calvert, etc., Publishing Co. v. Association, 61 Id. 337 (28 N. W. Rep. 111).
There are several allegations of error in the affidavit for the writ of certiorari, based upon the charge of the
It was conclusively shown upon the hearing, and in fact not disputed or attempted to be controverted, that Ray was indebted to all these parties to whom the mortgages were given except Sesser. Ray was under no legal obligation to secure Gore by mortgage unless he chose, and it is no evidence of fraud that he did secure other Iona fide claims, and refused to secure Gore. Jordan v. White, 38 Mich. 253. It appears that the mortgage given to Sesser did not state that it was given in trust for the several parties to whom the money was to be paid by Sesser, when paid on the mortgage, but this fact was shown on the trial by the paper made at the same time of the mortgage, and executed by Sesser, agreeing to so apply these moneys. It is not questioned that the defendant actually owed the moneys to the parties named in the agreement, and in the amounts therein stated. These two papers, — the mortgage and the agreement made by Sesser,' — taken together, show the transaction, and the question whether the Sesser mortgage was intended as a fraud upon creditors of Ray was fully and fairly submitted to the jury by the court.
“The only question is, in giving this mortgage to Sesser, and having Sesser agree to pay certain men when he should pay him, whether in doing that it was his intention, — his Iona fide intention, — to pay these men, or whether it was done to keep that much of his property from his creditors. That is the question for you. If it was done bona fide, with the intent that he would pay them, then there was no fraud about it. If it was done with the intent to save that amount of money to himself, if there is any evidence of that, that would be fraudulent.55
In this the court was correct, and the charge was as '.favorable to the respondent as the facts warranted.
We find no error in the record, and the judgment of the court below must be affirmed, with costs.