29 Kan. 446 | Kan. | 1883
The opinion of the court was delivered by
W. J. Wilson commenced two actions in the district court of Harvey county, against J. W. Lightbody and James McGee. The first action was brought on February 9, 1882, to recover the sum of $5,371, and the second action was brought on February 14,1882, to recover the sum $2,687. In each of these actions an order of attachment was
“ That said defendants are about to remove their property or a part thereof out of the jurisdiction of the court, with the intent to defraud their creditors; and are about to convert their property or a part thereof into money, for the purpose of placing it beyond the reach of their creditors; and have property and rights in action which they conceal; and have assigned, removed or-disposed of, and are about to dispose of their property or a part thereof, with the intent to defraud, hinder or delay their creditors.”
In the second case, the order of attachment was issued upon substantially the same grounds as was the attachment in the first case, except that in the second case McGee was not charged with committing any wrong, and no attachment was asked for against him. These orders of attachment were levied upon a certain stock of goods situated in the city of Newton, Harvey county, Kansas. Afterward, the defendants filed motions in both of these cases to vacate these attachments, upon the ground that the matters and things set forth in the plaintiff’s affidavits for the attachments were untrue and false. The defendants also filed affidavits denying the truth of all the grounds set forth in the plaintiff’s affidavits for the attachments. Both these motions to vacate the attachments were heard by the court at the same time. Both parties introduced evidence, and the evidence was nearly all in parol. Upon this evidence the court made a general finding in each case in favor of the defendants and against the plaintiff,-and sustained the motions of the defendants and dissolved the attachments. From these orders dissolving the attachments the plaintiff now appeals to this court, bringing the two cases to this court on petition in error.
It appears from the evidence in these cases that the property levied on was originally the property of the defendant J. Wesley Lightbody, but that oil the 8th day of February, 1882, he sold the same to J. Gerson & Co.; and the only question presented to the court below upon the evidence was whether this sale by Lightbody to J. Gerson & Co. was made
Now these transactions look very .suspicious, and we can hardly feel that they could have been consummated in the utmost good faith; and yet the evidence does not so clearly show that they were consummated in bad faith that we can say as a matter of law that they were not consummated in good faith. The entire transactions were stated in detail by the several witnesses in their oral testimony; all the parties to the two suits testified orally before the court, and so also did their clerks, and Gerson, and several other persons; and the books and papers with reference to the transactions were also before the court: and yet, after the court had heard and seen all this evidence, it found in effect that all the transactions with reference to the sale of said goods and their trans
Before closing this opinion we might say. that if the property of Lightbody was insufficient to pay all his debts, that it was probably not inequitable to prefer the claims of the other creditors before those of the plaintiff Wilson; for some of the evidence seems to show that in the various dealings had between Wilson and Lightbody, Wilson generally overreached Lightbody, and obtained more than- in strict equity and good conscience he was entitled to obtain; and although Wilson’s claims against Lightbody are legal and valid, yet probably in pure equity and justice there is less foundation for them than there is for those of any of the other claimants or creditors of Lightbody. We do not think that it is necessary to consider the evidence in this case in detail, nor to consider the various claims of the several parties in detail. We have-considered all the questions raised by counsel for plaintiff in error, and do not think that any of his claims are sufficient to authorize a reversal of the orders and judgments of the court below. We have considered the questions with respect to the statute of limitations, and with respect to fraud in the disposition of property and concealment of property, and all other questions presented by counsel for plaintiff in error, and consider them insufficient to authorize any reversal in this case. We think the testimony of McGee was admissible, and certainly it was not sufficiently Erroneous to authorize a reversal; his wife was not a party to the suit, and he did not testify for her or against her; ■ and he did not testify concerning any communication made by one to the other. Besides, agency may always be proved- by simply proving that the agent in fact acted as the agent of his principal with