41 S.C. 312 | S.C. | 1894
The opinion of the court was delivered by
This action was originally brought in 1891, for the purpose of setting aside two writs of attachment levied upon the property of the defendant, J. T. Youngblood, by his codefendants, Witz, Biedler & Co. and Hurst, Purnell & Co., two of his creditors. The complaint, in substance, alleged that Youngblood was indebted to the plaintiffs by two notes, respectively, for $944.35 and $1,144.25; that Youngblood was largely insolvent; that the defendants, Witz, Biedler & Co. and Hurst, Purnell & Co., had issued two writs of attachments, which were levied by Sheriff Mann upon all the property of Youngblood on January 5, 1891; that the issuing of said attachments, and the levy upon all the property of Young-blood, was an attempt to give a preference to the said Witz, Biedler & Co. and Hurst, Purnell & Co. over the other creditors; and that said transaction was “collusive, and a fraud upon the rights of other creditors of said Youngblood.” And for relief, the plaintiffs prayed: (1) That the defendants and all other creditors be enjoined from prosecuting or commencing suit against Youngblood. (2) That Sheriff Mann, who held the property under the attachment proceedings, be enjoined from selling or disposing of, or interfering with, said property. (3) That a receiver be appointed to take charge of said property, and hold it subject to the order of the court. And (4) that the attachments be set aside and declared null and void, and for other relief, &c.
Upon some preliminary questions, the case came to the Supreme Court. But after these points were settled here, the cause was sent back to the Circuit, to be heard on its merits (see 37 S. C., 223 and 231), and in January, 1893, was fully heard by his honor, Judge Izlar, who states that upon the call of the case, on motion of the attaching creditors, and under the
After a very full consideration of the whole subject, his honor, Judge Izlar, rendered an exhaustive decree, which we hope will appear in full in the report of the case, as no argument that we could make would add to its fullness or clearness. He held that the procurement of the attachments by collusion between the debtor and the attaching creditors was a fraud upon the other creditors, and a violation of the assignment act, and thus concluded: “In view of the foregoing, I find: (1) That J. T. Youngblood, at the time of the attachments of Witz, Biedler & Co. and Hurst, Purnell & Co. were issued and levied upon his property, was insolvent to a large amount. (2) That the defendants, Witz, Biedler & Co. and Hurst, Purnell & Co., in procuring the attachments to be issued, acted in collusion with their codefendant, J. T. Youngblood, for the purpose of defrauding the other creditors of the said Youngblood. (3) That in acting in collusion with the said attachment creditors in the issuing of said attachments, the said J. T. Youngblood transferred all his property to them for the purpose of giving them a preference or priority as creditors over his other creditors. It is, therefore, ordered, adjudged, and decreed, that the aforesaid writs of attachment, issued as aforesaid, be, and the same are hereby, set aside, and declared null and void, and the clerk of the court is hereby directed so to mark the same. It is further ordered, that the injunction heretofore granted herein be continued, and that the funds now in the hands of
From this decree the defendants, Witz, Biedler & Co. and Hurst, Burnell & Co., appeal to this court upon some thirty grounds. We think, however, this large number can be reduced by a classification which shall include all the issues that were actually raised. In so classifying them, we shall follow somewhat the arrangement adopted by appellant’s counsel in their argument.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.