83 Mo. App. 318 | Mo. Ct. App. | 1900
This is the second appeal in this case (79 Mo. App. 219).
The opinion on the first appeal contains a statement of the main facts, which may be restated as follows: The plaintiff is an attaching creditor of the firm of John M. Carnahan & Company. A few days prior to the attachment Carnahan & Company sold its entire stock of goods to John Carr, the interpleader, for $235. The plaintiff attached the goods, claiming that the sale to Carr was fraudulent. Carr filed an interplea claiming the goods. On the first appeal we reversed the judgment on the interplea, which was in favor of Carr for the reason that his own evidence showed a fraudulent sale, in that the stock of goods had been sold for a sum less than the debts of Carnahan & Company; that the stock was substantially all the property owned by the firm, and that the
The question of the good faith of the sale to Carr was properly submitted to the jury. The evidence of the inter-pleader, as amended, required the submission of the question. The instructions are open to some criticism, but they contain no radical errors. If the sale -was made by Carnahan & Company 'to Carr for the purpose of paying its debts, and the price agreed on was reasonable and it was agreed that Carr should pay the amount to certain creditors of the firm, or that it should be paid pro raía, on certain debts, then the sale was valid. On the other hand, if the sale was made by
The judgment, however, will have to be reversed for error, both in the verdict and judgment. A proceeding by interplea in an attachment suit is substantially an action to recover from the officer the specific property attached. Was the interpleader the owner of the property at the time it was attached? This was the sole issue and the verdict ought to have responded to it. Here the jury stated that the issues were found for Carr and that they assessed the value of the property at $235. This verdict was insufficient and did not authorize a judgment of any kind. Upon this verdict, however, the court rendered a money judgment against the plaintiffs for the assessed value of the property, which was clearly erroneous. If the verdict had been responsive to the issue and in favor of Carr, then the judgment should have been against the plaintiff for costs only, and that the sheriff pay to Carr the proceeds of the sale of the goods, it appearing by the evidence that the goods had been sold by the officer. Engine Company v. Glazier, 55 Mo. App. 95; Nolan v. Deutsch, 23 Mo. App. 1; Grocer Co. v. Goetz, 57 Mo. App. 8; Spooner v. Ross, 24 Mo. App. 599; Nelson Dist. Co. v. Hubbard, 53 Mo. App. 23. If it was permissible for us to rectify this error we could not do so, as the record .does not show, the amount for which the goods were- sold.
The judgment of the circuit court will be reversed and the cause remanded.