Kleine, Timberman & Co. v. Nie

11 S.W. 590, 88 Ky. 542, 1889 Ky. LEXIS 69

• Court: Court of Appeals of Kentucky
• Decided: May 9, 1889
• Status: Published

Opinion

JUDGE BENNETT

delivered the opinion op the court.

On the 29th day of October, 1884, the appellee, Wm. Nie, professed to convey, by deed, all his property to the appellee, Eurber, for the equal benefit of his creditors. The appellants, on the 30th and 31st of October, 1884, and the 1st day of November, 1884, instituted their-respective actions of debt against the appellee, Nie, and sued out attachments in each of said actions, which were levied upon a lot of dry goods belonging to the appellee, Nie, which goods were claimed by the appellee, Eurber, as Nie’s assignee. The Chancellor discharged the attachments, and rendered a final judgment in the several actions, which had been theretofore consolidated. These-actions are here by appeal.

The attachments were sued out upon the grounds-that the appellee, Nie, had and was about to conceal, convey and dispose of his property, with the fraudulent intent to cheat, hinder and delay his creditors in the collection of their debts.

The proof is : That the appellee, as a merchant tailor in the city of Covington, owned a stock of goods suitable to his business, worth at least five thousand dollars ; that about midnight on the night of the 28th of October, 1884, Nie was discovered conveying, by means of a large wagon, a portion of his goods from his business house to a place of concealment; that about the 27th and 28th of October, 1884, he conveyed, by other means, more goods from his business house to a place of concealment; that early on the morning of the 29th of October, 1884, he caused the deed of assignment to be executed. Having, after the deed was executed and recorded, informed his attorney that he had, before making the deed, secreted some of his goods, and his attorney having informed him that such conduct would subject the deed of assignment to successful attacks by his creditors, he professed to replace, for the benefit of the trustee, said property, and pretended to return it to his business house for that purpose; but it is a well-established fact that he returned a part only of the goods that he had previously removed, leaving a considerable portion of them concealed, which remained in concealment until they were discovered by a detective who was put upon the hunt of them. It is said that he would also have returned these goods if he had had time. The fact is, he did have time, but he did not return them. He had ample time to inform his assignee where they were secreted; he knew, but he did not do so. The fact is, he did not intend to do so. He said that he had been advised to secrete a portion of his goods, and then assign the balance for the benefit of his creditors, and afterwards use the proceeds of the goods secreted to effect a compromise of his debts with his creditors; that in removing and secreting the goods he was acting pursuant to this advice, but finding out his mistake he returned the goods to his place of business; but, according to the proof, he only returned enough to make a show of having returned all, and withheld those that had been removed by other means than by the large wagon, the proof of the removal of which could not be so easily made. So the record shows, beyond question, that the appellee, Nie, concealed a lai'ge portion of his property for the fraudulent purpose of assigning the balance of his property for the equal benefit of his creditors, and inducing them to accept terms of compromise advantageous to himself but unjust to themselves, which purpose he never in fact abandoned. Therefore, these cases come squarely within the principles announced in the case of Bank of Commerce v. Payne, Viley & Co., &c., 86 Ky., 446; according to which the appellee’s fraudulent conduct rendered his property liable to the appellants’ attachments.

At the time the appellants, Kleine, Timberman & Co., obtained their attachment one of their debts sued on was not due, which fact appeared in their petition, notwithstanding which the clerk of the circuit court included sa,id debt in the order of attachment issued by him; also the attachment bond taken by him included this debt. The appellants, on the next day after filing their petition, filed an amended petition, in which the appellants set out the debt not due, and asked for an order of attachment •thereon, which the county judge granted upon condition that the necessary bond was given. According to section 288 of the Civil Code, the circuit clerk, at the time the attachment was issued in this case, had no power to issue an attachment on a debt not due; such power, by said section, was vested alone in the judge of the court in which the action was pending, or the presiding judge of the county court, or any circuit judge.

Also, section 289 provides, that the order of attachment “ shall specify the sum for which it is allowed.” Also, section 240 provides, that such order of attachment shall not be issued by the clerk until bond be executed pursuant to section 198 of the Civil Code.

The judge of the county court, as said, having granted the order of attachment upon condition that an attachment bond was executed pursuant to section 198, the circuit clerk issued the attachment without such bond having been executed, supposing, doubtless, that the bond theretofore given answered the purpose of the bond mentioned in the county judge’s order.

The clerk had, at the time the attachment was issued, no jurisdictional power to issue an attachment upon a debt not due; such power was vested exclusively in others. The issuing of the attachment on this debt, by the clerk, was not merely the erroneous exercise of a general power, or a defective exercise of such power, but the jurisdictional power itself was wanting, which rendered void — not merely erroneous — the granting of the attachment and the taking of the bond to the extent that the debt was not due. Therefore the bond was no protection to the appellee to the extent of the issuing of the attachment on the county judge’s order. . To this extent the Chancellor did right in discharging the attachment.

The debts in the cases of Katzenstein & Wachtel and J. W. Luhn & Co. were due at the time the actions were instituted.

Neinaber, Son & Co.’s debt was not due. The county judge granted the order of attachment in this action upon the condition that the required bond was executed, which bond was executed. But the appellees object to this order of attachment upon the ground that it failed to specify the sum for which it was allowed. The petition specifically described the debt, and asked for an attachment and judgment for that sum. The order directed that the attachment issue for the amount claimed in the petition, which order was, according to Burnam v. Romans, 2 Bush, 191, sufficient.

Except as to the debt not due in the Kleine, etc., case, all the attachments ought to have been sustained.

As the attachments, except as to said debt not due, in all of the actions, will have to be sustained upon the return of the cases, and as the debts were all due at the time the judgment was rendered by the Chancellor, the appellants, according to section 243 of the Civil Code, will be entitled to personal judgments for the amount of their respective debts that were not due at the time their actions were instituted.

The judgment in said cases is reversed and the cases remanded, with directions to enter judgment consistent with this opinion.