Avera v. Rice

Battle, J. On the 28th of December, 1894, Rice, Stix & Oo. instituted an action in the Ouachita circuit court against Lazarus & Levy, to recover a debt of $1,519.80 due to them by the defendants on an account; and sued out an order of attachment on the ground that the defendants had sold, conveyed and disposed of their property with the intent to cheat and defraud their creditors, and hinder and delay 'them in the collection of their debts; and caused the sheriff to seize the property of the defendants in obedience to the command of the same. On the 29th of January, 1895, W. F. Avera filed a complaint in the action, stating, in effect, that he was the owner and entitled to the possession of the property attached, by virtue of a deed of assignment executed and delivered to him on the 27th of December, 1894, by the defendants, Lazarus & Levy, for the benefit of their creditors, and that he was in possession of the property when the order was delivered to the sheriff, and when it was executed The grounds of attachment were controverted by the defendants; and on the 20th of April, 1895, the issues in the attachment were tried, and the court found the deed of assigment was void for fraud, and sustained the attachment, but Avera was not a party to that trial. On the 22d of April, 1895, Rice, Stix & Co. filed an answer to the complaint of Avera, admitting the execution of the deed of assignment to Avera, but averring tbat it was fraudulent and void, and denying tbat Avera was tbe owner and entitled to tbe property. On tbe same day a jury was impaneled to try tbe issues joined by tbis answer. In tbe trial Avera Offered to prove tbe execution and delivery of tbe deed of assignment by which tbe property attached was conveyed to bim by Lazarus & Levy for tbe benefit of their creditors, and the court, on objection, refused to allow bim to do so. He offered to read it as evidence, and tbe court, on objection, refused to admit it. While be was testifying, Avera was asked by'bis attorney if be was in possession of tbe property in-controversy at tbe time it was attached. Tbe question was objected to, and tbe court asked tbe attorney propounding it, “What is tbe object of these questions and of all this exemination?” and said, “I suppose, Mr. Gaughan, you are trying to get tbe deed of assignment before tbe jury, are you not?” Tbe attorney replying in tbe affirmative, tbe court said: “Then tbe court bolds tbat it is not admissible, because tbe court takes judicial knowledge tbat at the present term of tbis court, in a case pending between Rice, Stix & Co. and Lazarus & Levy, tbis same deed of assignment was held, upon a full investigation of tbe issues in said cause before tbe court, void on tbe ground of fraud in fact, and, under tbe statutes of this state, tbe fraud of tbe assignor affects and destroys tbe deed in tbe bands of assignee, and I therefore bold that tbe deed of assignment is void on tbe ground of fraud in fact, and refuse to permit tbe witness to answer tbe question.” Tbe complainant, Avera, then offered to prove tbat tbe bad made, executed and filed bond and inventory before be took possession of tbe property, and tbe court refused to admit tbe evidence; and, after many such offers and refusals, instructed the jury to return a verdict in favor of Rice, Stix & Co., which they did. Judgment was rendered against tbe claimant accordingly, and, after tbe filing and overruling a motion for a new trial, and “taking a bill of exceptions,” be appealed. Tbe court erred in refusing to allow the appellant to prove bis title to tbe property attached by tbe proof of tbe execution and delivery of the deed of assignment, and to read the same as evidence, and to prove that he had entered into bond and filed inventory of the property assigned in the manner prescribed by law, and that he was in possession of the property when the order of attachment was delivered to the sheriff. He had the right to prove his claim to the property by any fact in his knowledge or possession. The fact that the deed was held to be void in the trial of the issues joined by the affidavit of Lazarus & Levy controverting the grounds of attachment did not deprive, him of this right. He had the right to adduce the same evidence heard in that trial, if it was competent. He was not a party to that trial, and was not affected by its result. He was entitled to “a day in court.” Probst v. Welden, 46 Ark. 405, 412; Sand. H. Dig., §§ 372-374. Reversed and remanded for a new trial.