Hargrove v. Woolf

34 Kan. 101 | Kan. | 1885

The opinion of the court was delivered by

Horton, C. J.:

It appears from the record that the inter-plea of David H. Woolf was filed with the consent of the court and of the parties without verification. To this inter-plea, Cohn & Co. filed their answer, setting forth their defenses fully, and asking the chattel mortgage described therein to be declared fraudulent. Upon the trial, they objected to any evidence being offered, because the interplea was not verified. Thereupon the court permitted the verification. This is alleged as error. The section under which the interplea was filed reads as follows:

“Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, made by himself, agent or attorney, and issues may be made upon such interpleader and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay.” (Laws 1877, ch. 138, §1; Civil Code, §45a.)

Interplea; verification; There was no error or abuse of discretion on the part of the court in allowing the interplea to be verified. Full authority is given therefor by the provisions of - . _ ^ _ , _ _ , - §139 ot the code. It does not appear that Cohn & Co. were surprised, and they made no application for a postponement or eontinuanee-of the trial on account of the verification. Under said § 139 great latitude is given to the district court in permitting pleadings and proceedings to be amended, especially when they are occasioned by mistake, or are the result of oversight, and it can be seen that by so doing substantial justice will be done. The amendment allowed was clearly in the furtherance of justice, and was very properly granted. (Gaylord v. Stebbins, 4 Kas. 42; Taylor v. Clendening, 4 id. 524; National Bank v. Tappan, 6 id. 456; Wilson v. Phillips, 8 id. 211; Simpson v. Greeley, 8 id. 586; Railway Co. v. Nichols, 9 id. 235; Davis v. Wilson, 11 id. 74; Prater v. Snead, 12 id. 447; Kunz v. Grund, 12 id. 547; Wright v. Bacheller, 16 id. 259.)

It is next urged that the findings of the district court are not sustained by the evidence. In support of this, it is said that David H. Woolf never made to Isaac Woolf the loans and advances claimed by him; that the evidence shows that David H. Woolf, Isaac Woolf, his son, and Mendel Woolf, their agent, arranged to defraud the creditors of Isaac Woolf at the time of the loan of $500 on November 26, 1883, and from that time on to the failure of Isaac Woolf, that each of the parties acted together to carry out a scheme to cheat and defraud the creditors of Isaac Woolf; that the circumstances attending the preparation and execution of the chattel mortgages show the fraudulent purpose of David H. Woolf and his son, Isaac Woolf, to defraud the creditors of the latter; and that the chattel mortgages executed to David II. Woolf were all taken by him with the intent of assisting his son, Isaac Woolf, to cheat and delay his creditors. We have read the evidence in the case, with the comments of counsel, and confess 'that if the cases were before us upon trial de novo, we might take a different view of some of the evidence from the learned trial judge; but upon review, all we can say is that the evidence is conflicting. Even if we assume the preponderance of the evidence is against some of the findings, we would not be justified in granting new trials, as it is the established rule of this court that the verdict of a jury will not be disturbed if there is sufficient testimony to sustain it; and that the findings of a district court upon questions of fact, where, the evidence is conflicting, are as conclusive as the verdict of a jury. The findings of fact must therefore stand as made by the trial judge. (Railway Co. v. Kunkel, 17 Kas. 145; Hobson v. Ogden, 16 id. 388; Gibbs v. Gibbs, 18 id. 419.)

Finally, it is claimed that the court erred in assessing the amount of recovery of David H. Woolf upon his interplea in the sum of $166.85. It is said that he was entitled to recover only $157.35, if entitled to judgment for anything, as the goods which came into the hands of the sheriff of Douglas county, claimed under the interplea, sold for only $157.35. It is asserted that the trial court added to the $157.35 the value of a mirror and trunk levied upon in Atchison county, which were sold for $9.50. The record, as presented to us, is somewhat confusing, but does not clearly bear out the assertion. It is stated in the case-made, as an admitted fact, that in the action of Cohn & Co. against Isaac Woolf, a writ of attachment was issued to the sheriff of Douglas county, and a stock of goods levied upon in that county; that the same were sold by the receiver for the sum of $166.85. In another portion of the record, Charles B. Graham testifies “that he sold the Lawrence stock of goods for $157.35, including what was levied on in the Cohn & Co. case in Atchison county.” Error is not to be presumed; and as the finding of the court upon the value of the goods seized in Douglas county seems to be in harmony with the recitation of an admitted fact in the case-made, we must accept the finding upon this point as true. (Humphrey v. Collins, 23 Kas. 549; McCoy v. Whitehouse, 30 id. 433.) A mirror and trunk are mentioned in the answer to the interplea, but we cannot find anywhere in the record that they were sold for $9.50, although Graham, the deputy sheriff, testified that the goods levied upon in Atchison county in the Cohn & Co. case were appraised from $8 to $13. There are other matters referred to in the petitions in error, but they are not discussed or mentioned in the briefs; therefore we need not notice them. (Wilson v. Fuller, 9 Kas. 176; Sullenger v. Buck, 22 id. 28.)

The judgment of the district court will be affirmed.

All the Justices concurring.