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No. 112. Argued November 14, 15, 1889. - Decided December 9, 1889.
A creditor of an insolvent debtor, having full knowledge of the insolvency,
secured for himself a transfer of a large part of the notes, book accounts and debts of the insolvent. Other creditors by a proceeding which was part of the same transaction secured their debts by attachments sufficient to absorb all the property of the debtor. A creditor not included in the arrangement sued the debtor and by garnishee process brought in the creditor who had obtained the notes, etc. Held, (1), that the garnishee was bound to establish, as against the pursuing creditor, that his claim against the debtor was just, and that he will receive from the assets no more than is reasonably necessary to pay it; and, (2), if he is found liable at all as garnishee, he is liable to account not only for the money collected on the notes, accounts, etc., but also for the value of those wbich remain in his hands, at least to a sufficient amount to satisfy the debt of the pursuing creditor.
The case is stated in the opinion.
Mr. Martin F. Morris, (with whom was Mr. Leo N. Levi on the brief,) for plaintiffs in error, cited : Greenleve v. Blum, 59 Texas, 124; Ellis v. Valentine, 65 Texas, 532; Lewy v. Fischl, 65 Texas, 311; Bunn v. Ah, 29 Penn. St. 387; Rice v. Perry, 61 Maine, 145; Horwitz v. Ellinger, 31 Maryland, 492, 504; Price v. Brady, 21 Texas, 614; Taylor v. Gillean, 23 Texas, 508; Tirrell v. Canada, 25 Texas, 455; Ellison v. Tuttle, 26 Texas, 283; Van Ness v. Hyatt, 13 Pet. 294.
Mr. George Hoadly, for defendants in error, cited : Chandler v. Von Roeder, 24 How. 224; Gregg v. Moss, 14 Wall. 564; Cooper v. Coates, 21 Wall. 105; Cannon v. Pratt, 99 U. S. 619; Mining Co. v. Taylor, 100 U. S. 37; Loder v. Whelpley, 111 N. Y. 239; Callan v. Statham, 23 How. 477; Walcott v. Almy, 6 McLean, 23; Hubbard v. Allen, 59 Alabama, 283; Hamilton v. Blackwell, 60 Alabama, 545; Harrell v. Mitchell, 61 Alabama, 270; Buchanan v. Buchanan, 72 Alabama, 55; Zel
Opinion of the Court.
nicker v. Brigham, 74 Alabama, 598; Owens v. Hobbie, 82 Alabama, 466; Oppenheimer v. Halff, 68 Texas, 409; Jones v. Simpson, 116 U. S. 609; Hamilton v. Russell, 1 Cranch, 309, 313; Etting v. United States Bank, 11 Wheat. 59, 74, 75; Rhett v. Poe, 2 How. 456; Privil. Lond. 197 (3d ed.) 255; McDaniel v. Hughes, 3 East, 367; Walker v. Gibbs, 2 Dall. 211; Staples v. Staples, 4 Greenl. 532; Glenn v. Boston & Sandwich Glass Co., 7 Maryland, 287; Tirrell v. Canada, 25 Texas, 455; Ellison v. Tuttle, 26 Texas, 283.
MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the Circuit Court for the Northern District of Texas.
Hoffheimer Brothers brought suit in the District Court of Dallas County, Texas, for a debt of $11,329.79, against Strauss & Levy, of that place, a firm composed of A. Strauss and J. J. Levy, in which suit they applied for and obtained a writ of garnishment against Frieberg, Klein & Co., who were residents of the same county and doing business in Dallas. This writ was served upon Frieberg, Klein & Co. through Joseph Seinsheimer, a member of the firm, in the county of Galveston, on the 15th day of August, 1885. The writ required the garnishees to answer upon oath“what, if any, they were indebted to said Strauss & Levy, and were when this writ was served upon them, and what, if any, effeets of said Strauss they have in their possession, and what when the writ was served.” To this they made the following answer on oath :
“Now come Frieberg, Klein & Co., garnishees herein, and, answering the writ of garnishment heretofore served upon them, say that they are not now indebted to Strauss & Levy, or either of them, and were not when this writ was served ; that they have no effects of Strauss & Levy, or either of them in their possession, and had none when this writ was served; that they know of no person indebted to Strauss & Levy, or either of them, or who have in their possession effects belong. ing to Strauss & Levy, or either of them.”
This answer was controverted by Hoffheimer Brothers, who
Opinion of the Court.
took issue upon it by a plea which alleged that said garnishees "combined, colluded, and confederated together with said Strauss & Levy for the purpose and with the intent to hinder, delay and defeat the creditors of said Strauss & Levy in the collection of their debts, and that in furtherance of said combination, at said time and with the intent aforesaid, said garnishees secretly and covinously procured and received from said Strauss & Levy all the books, accounts, notes, choses in action and other evidences of indebtedness then owing to said Strauss & Levy by divers and sundry persons to these plaintiffs unknown, but amounting in the aggregate to about the sum of thirty-two thousand dollars, and that said garnishees thereafter immediately commenced to collect said claims, pretending to be owners thereof. These plaintiffs are not informed as to the amount of such claims which had been collected by said garnishees at the time said writs of garnishment were filed herein, but they are informed and believe that at the time the writs of garnishment were served, as well as at the time the said answers were filed, said garnishees had then collected a very large amount upon said claims — it is believed more than sufficient to pay off and discharge the claims of these plaintiffs against said Strauss & Levy - and that the said garnishees then had and still have the money so collected, and that said garnishees then had in their possession said claims not so collected by them.”
The case was afterwards transferred to the Circuit Court of the United States, and the plaintiffs having obtained judgment against Strauss & Levy for the sum of $11,787.15, a trial was had in that court before a jury on the issues made between Hoffheimer Brothers and Frieberg, Klein & Co., garnishees. In that trial the jury returned a verdict in favor of the plaintiffs for the sum of $11,329.79, and the court rendered judgment upon that verdict, and declared that when it should be paid or collected it should constitute a credit for that amount on the judgment in favor of plaintiffs against Strauss & Levy. It is to reverse this judgment that the garnishees, Frieberg, Klein & Co., have brought the present writ of error.
The errors assigned relate to the admission of evidence
Opinion of the Court.
against objections of plaintiffs in error, and to the charge of the court to the jury, and to the refusal to charge as requested by them.
A bill of exceptions was taken which purports to give the proceedings on the trial, and which, while it does not expressly state that it includes all the testimony given in the case, is probably a correct statement of all that was said and done pertinent to the issues now presented. It
appears from this bill of exceptions that Strauss & Levy were engaged in Dallas as wholesale dealers in liquors and cigars on the 10th day of August, 1885, and were at that time seriously embarrassed in their business; that Frieberg, Klein & Co. were also wholesale dealers, in Galveston, Texas, with a house in Dallas ; that Strauss & Levy were indebted to Frieberg, Klein & Co. by notes and accounts in the probable sum of about $15,000; and that on the 10th day of August aforesaid, just after dinner, Klein was in the office of Strauss & Levy, when Mr. Bradford, a lawyer, came in. He had a paper in his hand, and demanded payment of them of a claim not then due. They said they would pay it when due, and Bradford talked about suing them. Klein says he knew that Bradford was the attorney for the Bradstreet Commercial Agency, and he became alarmed, and demanded payment for the debt due his firm. They told him they had no money, but they had notes and accounts which they assigned to Frieberg, Klein & Co. in payment of their debt on his demand. The notes and accounts were assigned to Frieberg, Klein & Co. by a written instrument in which Strauss & Levy assigned and transferred to Frieberg, Klein & Co. in full payment and satisfaction of their indebtedness to that firm of the sum of $15,789, "all of our accounts mentioned on a sheet attached marked A, and the notes now held by Frieberg, Klein & Co. as collateral security, besides the notes this day handed Mr. Klein in person, which notes with aforementioned accounts, amount in the aggregate to the estimated value of $15,000." This instrument is dated the same day, August the 10th. Mr. Klein states that late on the night of the 10th a Mr. Rhinehart came to his house and showed him a telegram, and stated that Strauss & Levy were outside and wanted to know what to do
Opinion of the Court.
about their business matters. At their solicitation he went with them to the residence of Mr. L. M. Crawford, a lawyer, after one o'clock in the morning of the 11th. Mr. Crawford said that his papers were ready, and he was going to attach. It appears that during that night papers were prepared for attachment in favor of several creditors living in the town of Dallas. Among these attaching creditors were Marx & Kempner, Addie Lowenstein, Oliver & Griggs, and perhaps others. The order in which these attachments should be levied or issued so as to give priority among themselves was determined during these interviews, in all of which Mr. Klein took an active part, directing himself the displacement of this order of priority in one case to the dissatisfaction of Strauss & Levy when they found it out, who thus found some of their own friends, whom they intended to make safe by these attachments, postponed to some others; and it is obvious from the testimony, that Klein, and Strauss & Levy and Crawford, the lawyer, and some of the other parties to those suits sat down during that night and morning and arranged for the issuing of attachments sufficient in amount to absorb all the property owned by Strauss & Levy, and that Hoffheimer, and perhaps many other creditors, were left without protection and without any means of making their debts, so that between the time when Bradford, the lawyer, made his demand that evening, after dinner, and daylight next morning, all the assets of the partnership of Strauss & Levy had been divided between the parties who met that night, and that, not by any assignment, but by a contrivance by which Frieberg, Klein & Co. got the choses in action, whether notes or accounts due to Strauss & Levy, and the visible property was secured to the other persons engaged in the transaction by attachments issued with the consent and active assistance of Strauss & Levy, and apportioned among these different parties in accordance with an arrangement which met the assent of all of them. It will be observed that in the reply of Hoffheimer & Co., by which they took issue on the answers of the garnishees, they state that prior to the service of the writ of gærnishment said garnishees combined, colluded and confederated together with