20 Ind. App. 431 | Ind. Ct. App. | 1898
The appellant, as assignee of George C. Freeman, sued the appellees, Ewing Stilwell, sheriff of Jackson county, and G. W. Marquardt & Sons, a corporation of Chicago, Illinois, for the recovery of possession of a certain stock of goods and damages for the detention thereof. There was an answer in denial, and a trial by the court resulted in a finding for the appellees, in accordance with which judgment was rendered.
The overruling of the appellant’s motion for a new trial is assigned as error, and it is contended that the finding was not supported by sufficient evidence. The complaint showed, in substance, that said Freeman, being a resident of Montgomery county, Kentucky, and insolvent, owning the stock of goods in question situated at Seymour, Jackson county, Indiana, on the 16th day of September, 1896, made a general assignment of all his property, for the benefit of all his Iona fide creditors, to the appellant, and in that behalf duly executed an indenture of assignment in writing, a copy of which was exhibited with the complaint, in all things in accordance with the laws of Kentucky, a copy of said laws also being exhibited with the complaint; that on the same day the appellant accepted the trust and executed his bond with sureties, which was thereupon approved by the county judge of said county, duly qualified and entered upon the discharge of his duties as such assignee, and caused said indenture to be recorded in the office of the clerk of said'
It was alleged that the appellant was the owner in his trust capacity of said property, and entitled to the possession thereof; but on the 22d day of September, 1896, the appellees having actual notice and knowledge of said assignment, wrongfully seized and took said property from the appellant, under and by virtue of a writ of attachment sued out by said corporation
The learned counsel for appellees argued before us quite forcibly against the consideration by us of the evidence set forth in a bill of exceptions, insisting that it does not sufficiently show that it contains all the evidence given in the cause. It appears in the bill of exceptions that the evidence was reported by a shorthand reporter spoken of therein as the official shorthand reporter of the court. It is contended that while the bill shows on its face that much documentary evidence was given in the cause, it purports to contain the evidence taken down in shorthand by the official reporter, and does not state that it contains the documentary evidence. In the formal expressions employed by the reporter her report is spoken of as an original longhand manuscript of the evidence taken and reported by her in shorthand, and in her certificate she refers to her report to which the certificate is appended as a longhand transcript of her shorthand report of the evidence, and states that it contains all the evidence given in the cause. Each item of documentary evidence shown to have been introduced is copied into the bill immediately following the statement of its introduction, and is thus made a part of the reporter’s longhand transcript and of the bill of exceptions. The judge certifies that this longhand manuscript contains all the evidence given in the cause. While the longhand manuscript of the evidence thus formally purports to be a transcript of the
The settling of a bill of exceptions is a judicial act. The judge in his judicial capacity having declared that the bill contains all the evidence given in the cause, the objection that the items of documentary evidence were copied into the stenographer’s longhand report of the evidence and the entire report, denominated by the reporter and the judge as a longhand manuscript of the reporter’s shorthand report, is so merely technical a criticism that to allow it would be contrary to sufficiently manifest truth.
Some question is made in argument as to the validity of the statute relating to official shorthand reporters, but it is an immaterial matter in this case, for there sufficiently appears to have been a compliance with the act of 1873 relating to shorthand reporters. In the record it is stated: “This cause is now called for trial, and Miss Bessie Burrell is sworn to report the case.”
No objection to the reporter appears to have been made. It does not appear whether she was appointed on the court’s own motion or was employed by the parties or either of them, or that the oath was administered upon a motion of a party. In the absence of any showing upon the subject, we will not presume that the action of the court was not regular.
It appears from the evidence that the assignee through his authorized agent took possession of the goods at Seymour on the 17th of September, 1896, and while he still, through his servant, held possession, the property was seized on the 22d day of the same month, under the writ of attachment issued on that day.
The evidence showed that the deed was executed and acknowledged by the assignor, and accepted by the assignee, and filed in the clerk’s office, on the 16th of September, 1896. On the next day the assignee, before the county court, qualified, offering his bond, which was then approved by the court, and taking the oaths required by law. On the 21st of September, 1896, the assignor was by said court given until the 30th of the same month to file his schedule, and the assignee was ordered by said court to proceed at once to sell the stock of merchandise assigned to him by said assignor, located at Seymour, Indiana. The assignor filed his schedule on the 7th of October, 1896.
It is contended on behalf of the appellees that the assignment was ineffectual to vest title in the assignee until the assignor filed his schedule. With this view we are unable to agree. The statute provided that the deed of assignment shouldvestthetitleinthe assignee, and it would seem reasonable to conclude that when the deed had been executed by the assignor and accepted by the assignee and had been duly recorded
The statute elsewhere provides means for enforcing disclosure by the assignor of information concerning the estate and claims against it, and it cannot reasonably be thought that any mere default on his part after the making of the assignment shall operate to deprive the creditors whose interests are represented by the assignee of the benefit contemplated by the statute.
By one of the provisions of the statute it was made the duty of the assignee to file in the clerk’s office of the county court, “as soon as maybe,and within fifteen days after his qualification, unless the court allows longer time, an inventory verified by him of all the estate that came to his hands.” Ky. St., section 81.
On the 8th of February, 1897, the appellant filed in said court a supplemental report and inventory taken by him by his duly authorized attorney E. K. S. Clinkerbeard, in Seymour, Indiana, on September 17, 1896, which inventory does not appear to have been verified. It seems to have been thought by counsel for the appellees that because of the delay in filing this inventory beyond the period mentioned in the statute, and the fact that it was not verified, the assignment had not taken place when the writ of attachment issued. Ample provision appears in the statute also for enforcing the performance of the as
It is also urged on behalf of the appellees, that under the facts of the case as shown by the evidence, the appellant cannot be regarded as having taken possession of the property in question before the writ of attachment was levied upon it.
Among the provisions of the deed of assignment was one that the trustee had full power to employ attorneys to assist in the settlement of the trust, and that the assignee “hereby employs E. K. S. Glinkerbeard.” The assignor resided in Montgomery county, Kentucky, where his principal business was located, the store at Seymour being a branch establishment in charge of a Mr. Kay. The assignee did not himself come to Indiana until after the goods had been taken by the appellees. He employed said Clinker beard, who was a lawyer, and sent him to Seymour on the
One William B. Tompkins, a resident of Chicago and an employe of said corporation, its confidential man with power of attorney, also went to Seymour on the 17th of September, 1896. He met Clinkerbeard there and told him the business he was on, which the evidence indicates to have been to obtain a mortgage from said Freeman. Tompkins, at the store, when Clinkerbeard was there, read the deed of assignment and Clinkerbeard’s power of attorney. Tompkins displayed his power of attorney to Clinkerbeard, who allowed the former as the representative of the corpora
At the time he helped tq make the inventory, he was informed that Mr. Freeman had made an assignment to Mr. Pitman, and he saw the deed of assignment and a power of attorney from the assignee to Olinkerbeard. Aftér the departure of Olinkerbeard, Tompkins remained in Seymour, and the attachment proceeding was commenced at his instance, the writ being issued and served on the 22nd of September, 1896. He accompanied the sheriff and assisted in taking the goods. When they went to take the goods, the store' was closed, and there was a notice posted on the door stating that the store was closed and that Freeman had assigned to Pitman. The sheriff obtained the keys from Mr. Kay, and took the goods in charge and had since kept them in the county.
It is thus plainly shown by the evidence that the assignee took possession through his agent and was holding the goods by his servant when the writ of attachment was issued. That the assignee might take and hold the goods through a servant cannot be questioned. It is claimed that the attorney who took possession for the assignee had been employed before the assignee had qualified as such, and therefore had no sufficient authority. The possession was taken after the execution and acknowledgement of the deed and on the day on which the assignee qualified. Whenever the appointment was made the employment con
Finally, it is contended that the assignment having been made in Kentucky under the laws of that state, is fraudulent and void in respect to the property situated in Indiana. In Woolson v. Pipher, 100 Ind. 306, to which reference is made by appellees, and by which we are bound, it was held that a voluntary assignment for the benefit of creditors made in Ohio could not defeat the lien of attaching creditors upon goods in this State, where the writ of attachment was in the hands of the sheriff before possession of the goods had been obtained by the assignee. In Union Savings, etc., Co. v. Indianapolis Lounge Co., ante., 325, this court had occasion to point out that there is no statute of our State prescribing the duties of a foreign assignee to whom has been assigned personal property situated in this State, and it was held by us that a voluntary assignment for the benefit of creditors made in another state and perfected in accordance with the law thereof, so as to pass the title to the assignor’s property in that State, will also pass title to his personal property situated in this State, though as to tangible personal property so situated, the assignee’s actual possession thereof must be acquired in order to vest title in him, as
It is contended that to uphold this Kentucky assignment would be contrary to the policy and statutory law of Indiana. In this connection it is said by counsel that our law allows preference of creditors made in good faith, — that a debtor in failing and embarrassed circumstances may, in contemplation of making an assignment, prefer some of his creditors to the exclusion of others, — while by the statute of Kentucky in evidence it is provided that if the assignor, before making the deed, shall have made any preferential or fraudulent transfer, conveyance or gift of any of his property, or a fraudulent purchase of any property in the name of another, “the property so fraudulently transferred, conveyed or purchased shall vest in the assignee,” and it shall be his duty to institute proceedings to recover it, etc. Ky. St., section 84. Without discussing the question as to the difference between the law of this State and that of Kentucky here stated, it may be said that if no preferences are permissible in Kentucky, such as are allowable in Indiana, the difference would seem to be in the interest and for the benefit of the creditors in general, and not one of which the appellees could be heard to complain.
In the deed of assignment the assignor reserved to himself and family a homestead and all exemptions under the laws of Kentucky. The statute of that state in evidence excepts from the property which shall pass by the deed of assignment the property exempt by law unless embraced in the deed, and provides that if the assignor reserves any property under the exemption laws, the court shall, by methods prescribed by the statute, cause it to be set apart to the
It is contended that the exemption laws of Kentucky are opposed to the policy of this State, which exempts to the debtor property not exceeding in value $600.00. It does not appear in this case otherwise than as above stated what are the exemption laws of Kentucky. Nor does it appear that in fact the appellant’s assignor actually received or would receive any homestead or an exemption of property of any definite value, or what exemption he will in fact re: ceive.
Our statute concerning voluntary assignments for the benefit of creditors relates only to assignments made in this State, and has no reference to assignments made in other states. It was said in Catlin v. Wilcox, etc., Co., 123 Ind. 477, that it is well settled that personal property is transferable according to the law of the owner’s domicil, and that a voluntary assignment or transfer, made without compulsion or legal coercion, is to be governed everywhere by that law, unless the contract by which the transfer was made is limited or restrained by some policy or positive enactment of the state in which the property is situate, or unless it affects citizens of the latter state injuriously. In Weider v. Maddox, 66 Tex. 372, 1 S. W. 168, it was said: “It seems, however, to be everywhere admitted that a general voluntary assignment, for the benefit of creditors, made by an insolvent debtor, in accordance with the laws of the place of his domicil, will pass all his personal property wherever situated, unless the operation of such assignments is
We have not been referred to any case in which it has been decided that a voluntary assignment made in one state and valid under its laws may be attacked in another state on the ground that the amount of exemption provided by the laws of the former is greater than that provided by the laws of the latter.
Such an exemption under a foreign assignment is not in contravention of any statutory provision in this Statej nor can we be considered as deciding contrary to the policy of our State, which under its laws provides for exemption of property from execution against its resident householders, if we should recognize and uphold the title of an assignee in possession of goods in this State under a valid voluntary assignment made in Kentucky, as against a subsequently
Basing our decision upon the facts of the case before us, we do not mean to be understood as concluding that the result should be different if the attaching creditor were a citizen of this State. We are of the opinion that the assignment should be upheld because it is in accordance with the law of the state where made, and not contrary to the law or policy of this State. The finding was not supported by sufficient evidence. Judgment reversed.