119 Mo. 117 | Mo. | 1893
This was a proceeding in the Greene county circuit court to settle the rights of attaching
On the fourth of December, 1890, Levy 8s Weinberg, a firm composed of Moses Levy and Michael J. Weinberg, confessed three judgments in favor of as. many banking corporations. On the same day executions were issued on the judgments, and the executions were at the same time levied upon a stock of goods owned by the judgment debtors. At the same time Weinberg commenced a suit against his partner Levy for the alleged purpose of dissolving the copartnership. The court, by a consent order, appointed Mr. Delaney receiver of the property and effects of Levy 8s Weinberg. On the next day, the fifth, the receiver qualified and the court then made an order directing the sheriff to turn the goods over to the receiver, subject to the lien of the executions.
Late in the evening of the fourth and after the executions had been levied and while the goods were still in the possession of the sheriff, three attachments were issued and by the sheriff levied upon the same stock of good, one in favor of the H. B. Claflin Co. against Levy 8s Weinberg, one in favor of the H. B. Claflin Co. against Moses Levy, and the other in favor of Earwell & Co. against Levy 8s Weinberg. The Claflin attachments were levied at 9:45, and the Earwell attachment at 10 o’clock in the afternoon. The goods were then in the possession of the sheriff.
The Claflin attachments were commenced by Mr, Heffernan as the attorney for the Claflin Co. The circuit court, in which the suits were commenced, was in session from the fourth to the ninth. On the sixth, seventh and eighth, the judge stated on several occasions that the Claflin Co. and Mr. Hefferman were in contempt of court, because of the levy of the attachments after the receiver had been appointed. This
' At the opening of the court on the next morning, the ninth, Rothchild & Bro. appeared by their attorney and asked leave to attach the property in the hands of a receiver; and Jaffray & Co., the plaintiffs in this motion, asked the like leave. The judge, after reading some authorities presented by the attorney of Rothchild & Bro., said: “Before I grant this petition I shall set aside the orders of dismissal made in Mr. Heffernan’s cases.” Heffernan was then present representing the interests of his clients, and thereupon the court made the following order in each of the Claflin Co. cases: “Now at this day comes the plaintiff, by attorney, whereupon the court for good and sufficient reasons appearing, orders that the order made yesterday dismissing the plaintiff’s cause of action be and the,
Immediately after making these orders setting aside the dismissals, the court gave leave to Rothchild & Bro., and to Jaffray & Co. to attach, the Rothchild attachment being the prior in poipt of time. The sheriff then levied these two writs upon the goods, stating in his return that he levied them subject to the executions and the attachments of Claflin & Co. and Farwell & Co.
Levy & "Weinberg filed pleas in abatement in all of the attachment suits, but the pleas were thereafter withdrawn, and the attaching creditors in due time obtained judgments.
After satisfying the executions, there was in the hands of the sheriff the sum of $6,982. Treating the attachment of the Claflin Co. against the firm of Levy & Weinberg as having been duly reinstated, the attaching creditors would have priority in the following order and amounts: The H. B. Claflin Co., $5,125; Farwell & Co., $431; Rothchild & Bro., $1,672; Jaffray & Co., $5,645.
Jaffrey & Co. insist that the Claflin Co. lost its lien by reason of the dismissal of the attachment suit, and that the reinstatement of that suit did not reinstate the lien.
We may here notice the cases most in point cited to support these propositions. In Brown v. Harris (2 Greene (Iowa) 505), therehadbeen a suit by attachment before a justice of the peace. The plaintiff was nonsuited, and he in due time filed a motion to set aside the nonsuit, which motion was sustained, and he then recovered judgment. The supreme court held
In Murphy v. Crew, 38 Ga. 139, there had been two attachments against the same person. The garnishees answered that they owed the defendant: The first attaching creditor dismissed his suit in vacation and at a subsequent date, and in term time, moved the court to reinstate the , attachment, the defendant consenting. It was held the case could only be reinstated subject to the rights of third persons, and that upon the dismissal of the first attachment the second attaching creditor obtained the right of priority. The right of priority, it was held, could not be divested by reinstating the first attachment at the next term of the court. That case is unlike the one in hand in several respects. There both attachments had been served before the dismissal, while here the appellants obtained leave to attach after the Claflin suit had been reinstated. The circumstances leading to the dismissal in that case do not appear.
A contention made in this case is, that the order setting aside the dismissal is void because it was made without notice to the defendants in the attachment
The question here, then, is one between the attaching creditors themselves. There is no doubt but the rights of such creditors must be measured and defined by strict law. A priority once acquired may be lost when there is a substantial departure from the legal mode prescribed for enabling a party to obtain the benefit of his attachment. Drake on Attachment [7 Ed.], sec. 262. But the same author goes on to say: “This is a different matter from mere irregularities; for it is well settled that, though such exist in the proceedings ■of one attaching creditor, other attaching creditors can not make themselves parties to the proceedings for the purpose of defeating them on that account.” These principles were approved by this court in Bank v. McDonald, 46 Mo. 31. In that case a debtor of defendant was garnished after the return day of the'execution. The garnishee answered and there was judgment against him. Other judgment creditors moved to set aside the judgment against the garnishee because of the irregularity, which motion was overruled, and they prosecuted a writ of error. It was held the other judgment creditors had such an interest as to entitle them to set aside the judgment against the garnishee.
Now what is. the complaint here? It is not that there was even an irregularity in procuring and causing
Had the Claflin suit of attachment been dismissed, on the motion of some one having an interest adverse to the Claflin Co., there can be no doubt that the court could have reviewed its ruling, and for good cause shown, set aside the order of. dismissal. In that ease the attachment would stand m full force, for the attachment is but an incident or auxiliary to the suit. Many cases may be readily called to mind where it would be the duty of the court to set aside a¡ dismissal, whether voluntary or involuntary. It seems to us that there can be no doubt but the court has the power and jurisdiction to vacate the order dismissing the Claflin Co. attachment, and as it had that power the order ought to stand until vacated by a proper motion made for that purpose. No such motion was made, and on the record before us the Claflin Co. is in its original position as to priority, and so the trial court held.
‘ As the Claflin Co. dismissed its suit under a species of compulsion, and as the cause was reinstated on the next day, and before the appellants procured leave to attach, the manifest justice of the case is with the Claflin Co. and we think the law is also with it.
2. Jaffray & Co., the appellants in this proceeding, moved for a change of venue, on the ground that