51 Iowa 605 | Iowa | 1879
— I. We find an unusual difficulty in our way in this case. Counsel for defendant assigns sixty-five errors upon the record, and urges each in argument. The case really ought to be disposed of in an opinion of ordinary length, but if each assignment of error is considered it will demand more space than the questions discussed really merit. Unless
II. There was evidence tending to show that defendant had levied, or was about to levy, an attachment in favor of another party upon certain boxes of goods which were at the railroad depot awaiting transportation. They had been in the store of Parkinson, and constituted his whole stock in trade. The boxes were marked with the name of Mortimer Rice. Plaintiffs’ attorney requested defendant, or his deputy, who had charge of the business, to levy on the twenty-six boxes upon the writ in his hands, and hold the goods until he could cause a writ to be issued in an action upon plaintiffs’ claim, to be commenced as soon as he could go to .the county seat and return with the writ, which could be done on the same day. He agreed to give defendant a bond of indemnity to his satisfaction. This request, it appears, was complied with, and upon the return of the attorney with the attachment a levy was made and duly entered upon the writ. The attorney presented an indemnifying bond in the penalty of nine hundred dollars, which recites that the defendant had levied upon goods to the value of four hundred and fifty dollars. The amount of plaintiff’s claim was seven hundred and ninety-five dollars and seventy-five cents. But, as it was- supposed the twenty-six boxes of goods were of greater value, the defendant’s deputy declined to accept the bond. It was taken by the attorney, and with the consent of the obligees the penalty was changed to three thousand dollars; no other alterations were made. In this form it was sent by mail to the officer holding the writ.
The court thereupon gave to the jury the following instructions upon request of plaintiffs:
“2. And the court further instructs you that if you find that the defendant or his deputy was put in possession of said bond of indemnity, if the surety on said bond was responsible to-the amount of his liability thereon, he became and was inlaw sufficiently indemnified for' all acts he could legally perform under said writ of attachment, and is liable to the plaintiffs in this suit, unless he has satisfied you that the goods at the-time they were attached were legally the property of one Mortimer Rice, and purchased by him in good faith from the said. Parkinson, and without intent on the part of Parkinson and Rice, or those acting for them, to either hinder, delay or defraud the creditors of said Parkinson.
“3. You are also further instructed that, if you find from the evidence that the sheriff or deputy sheriff levied upon a lot of merchandise contained in boxes; that he had the legal right to hold possession of all of said boxes for a time sufficient to open said boxes, and invoice therefrom goods sufficient in amount to equal fifty per cent more than the indebtedness claimed to be owing from Parkinson to Wadsworth & Co.; and that it was the sheriff’s duty, upon being indemnified, as heretofore stated, to so hold and invoice, and after invoicing he had the legal right to offer to return the remainder of the goods, and the claimant of the goods could not legally refuse to accept a part without all, and hold the sheriff responsible in damages for all of said goods, but could only recover, if at all, for such goods as the sheriff insisted on holding.
“é. The court further instructs you that it was the duty of the sheriff or deputy in this case to le^y the writ upon goods of the value of fifty per cent more than the amount of
The following instructions were given upon the court’s own motion:
“4. If at 'the time the plaintiffs commenced their suit against Parkinson, and caused said attachment to be issued and levied upon said goods, said Parkinson was indebted .to the plaintiffs as claimed by them; and if said- goods, at the time of said attachment, were liable to seizure under said writ as the property of said Parkinson; and if the defendant or his deputy, Dearborn, before releasing said goods, was indemnified by the plaintiffs against loss by reason of levying upon and taking of said goods, sufficient in value to make fifty per cent more than said claim of the plaintiffs; and if, after being so indemnified, the defendant or his said deputy, without the knowledge or consent of the plaintiffs, released all of said goods from said levy, then the defendant is liable to the plaintiffs to the amount of their said claim against said Parkinson, and the plaintiffs are entitled to a verdict against the defendants therefor.
“5. The plaintiffs claim that the defendant and his deputy, Dearborn, were fully indemnified for levying upon said goods, and detaining, by virtue of said writ, sufficient thereof in value to make an amount fifty per cent more than the plaintiffs’ claim upon which said attachment proceedings were based; and they also claim that it was the duty of the defendant or his said deputy, they being so indemnified, to have held under said attachment the amount in value of said goods which the law authorizes to be seized and held in attachment proceedings; and in relation to these matters you are instructed that the law of this State authorizes a levy of a writ of attachment upon property fifty per cent greater in value than the claim upon which the attachment is based, and the
“6. In relation to the bond of indemnity offered in evidence in this case, and which the plaintiffs claim was given to the defendant to indemnify him and his said deputy against loss by reason of levying said writ upon said goods as the property of said Parkinson, you are instructed that said bond is a legal and valid instrument or bond for what it purports to be; and that it purports to be a bond to indemnify the defendant and his deputy from loss by reason of levying the plaintiffs’ said writ upon goods of said Parkinson, and holding by virtue
“7. If the defendant’s deputy did, at the request of the plaintiffs’ attorney, detain said goods by the levy of another writ till a writ could be procured in behalf of the plaintiffs, such detention would not constitute a defense in this action.
“8. It was the duty of said deputy, in levying said writ, to have seized property fifty per cent greater in value than the amount of plaintiffs’ claim, or as nearly so as the circumstances' would permit, and he had no right to attach and retain more than that amount, and had no right to exact a bond to indemnify him or the defendant for seizing and holding more property than would be requisite for making fifty per cent more than the plaintiffs’ claim; and had a bond been given to indemnify him or defendant for attaching and holding more than the law authorized, it would have been no indemnity or protection for such unlawful act; and the failure of the plaintiffs to give the defendant such a bond, even if their attorney agreed so to do, does not constitute a defense in this action.
“9. The plaintiffs also claim in this case that said Parkinson sold said goods to said Rice for the purpose of defrauding or hindering or delaying the creditors of said Parkinson, and that said Rice purchased said goods with the intent to aid said Parkinson in hindering, delaying and defrauding his creditors; and in relation to these matters you are instructed that if said Parkinson sold said goods to said Rice for the purpose of defrauding his creditors, or hindering or delaying his creditors in the collection of their claims against him; and if said Rice purchased said goods with intent to aid said Parkinson in accomplishing such purpose; or if said Rice purchased said goods knowing that Parkinson intended by the sale to him to hinder, delay or defraud his creditors; or if said Rice made said purchase, having notice or knowledge of
“10. But if the sale of said goods by Parkinson, and purchase by Rice, was not an honest and real sale and purchase, but was a sham transaction, or trade, made and gone into by them for the purpose of deceiving the creditors of Parkinson, or some of them, as to the real disposition to be made of the goods; they, Parkinson and Rice, knowing the trade would have the effect to defraud some of Parkinson’s creditors, ■or hinder or delay some of them in the collection of their olaim against him, then such sale and purchase was fraudulent and void as to such conditions, though said Rice may have given his note for the goods, and the note may have been applied or used in extinguishing some of the claims against Parkinson. Said Rice, under such circumstances, and if such were- the real character of the transaction, cannot, in-law, be considered a purchaser in good faith; and if
“11. The first questions for the jury to determine are, was said Parkinson, at the time of the issuing and levy of said writ, indebted to the plaintiffs as claimed by them; was said indemnity bond in the possession of defendant’s said deputy at the time or before the release of said goods from the levy; and was the surety on said bond responsible, at the time it was given and received by said deputy, for the amount of the liability thereon? And, in relation to these questions, your attention is directed to the evidence showing said Parkinson was, at the time referred to, indebted to the plaintiffs as claimed; and that said indemnity bond, as admitted by said deputy, was in his possession before he released said levy; and that the evidence shows that the surety on said bond was responsible for a much larger amount than the penalty named in said bond; and, because of such evidence, you can have little or no difficulty in disposing of said questions. The next question of importance to be considered and determined is that of the liability of said goods to be seized and held by the creditors of said Parkinson; and if you find from the evidence that said sale and purchase of said goods was not in good faith, but was made with intent to hinder, delay or defraud the creditors of said Parkinson, or some of them, as already explained, then you should find said goods liable to be seized and held by virtue of plaintiffs’ writ, to the extent or amount authorized by law to be levied upon, as already explained.
“12: It will be The duty of the jury, in arriving at a verdict in this case, to be governed by the evidence in the case, and the law as herein given you,, regardless of the condition
III. We think these instructions are a fair and full expression of the law applicable to the case.
V. The instructions of the court to the effect that the detention of the goods by the request of plaintiffs’ attorney until a writ was procured constitutes no defense to this action, are complained of by counsel. The instruction must be considered in the light of the facts of the case. The officer had a writ in his hands which he had levied or was about to levy. The attorneys for plaintiffs used no fraud or false representa'tions to. induce the officer to hold the goods. He did not hold' them without authority, for he had a writ authorizing the seizure. He was authorized to detain them long enough to ■select a sufficient quantity to satisfy the writ. It does not appear that any act was done by plaintiffs’ attorney or by the officer which would defeat the levy. The detention of .the goods, therefore, upon the attorney’s request, constitutes no defense to this action.
VIII. The officer levying the attachment, when upon the stand as a witness, was asked whether he accepted the bond sent him by plaintiff. An objection to this question was properly sustained, for the reason that it called for the statement of a conclusion rather than of facts. He was also asked whether the parties who instituted the suit, in which the-attachment he first levied was issued, indemnified him. An objection to the question was sustained. The ruling was correct; the transaction of the parties and the officer in the other case, as to indemnity, had no relevancy to the rights of the parties in this suit.
IX. The officer indorsed upon the writ the fact of the discharge of the goods and his reasons for discharging them, namely: that they were demanded by Rice as his property, and plaintiffs failed to give indemnity. The part of the return showing the reasons for the release of the levy was excluded when offered in evidence. The defendant asked the officer, in his examination, to state why it was he released the goods. An objection to this question was sustained. Both of these objections we think might have been overruled, but we think no-prejudice resulted from the rulings of the court. The record shows that defendant relied upon the defense that he law
Evidence was introduced tending to show that these parties were, or soon became, insolvent, and that Jacobs was arrested and imprisoned for some alleged fraudulent transaction, and other testimony tending to show the financial standing and practice of these parties was introduced, all against the objection of defendant. In view of the connection of the parties with the sale of the goods, and the transactions involved therewith, upon which are based the charges of fraud, we think the testimony was correctly admitted. Fraud may be shown by circumstances, and whatever has a tendency to establish the intentions of the parties charged therewith is
XI. It is insisted that the issues of the case were not fully stated by the court in the instructions to the jury. We have carefully studied the instructions and pleadings, and conclude ■this objection is not well taken. It is also urged that the verdict is not supported by the evidence. We have carefully examined the testimony as presented to us, and think that the judgment cannot be disturbed upon this ground.
Affirmed.