Bank of Tipton v. Cochel

Hall, J. This was a suit by attachment against the defendants on the ground, among others, that they had fraudulently assigned their property. One Hazell interpleaded, claiming all of the property attached, by virtue of a general assignment made to him by defendants. To the interplea the plaintiff made answer, alleging that the assignment was fraudulent as to the plaintiff and the creditors of the defendants. The plaintiff had judgment on the interplea, on which judgment the inter-pleader sued out of the Supreme Court a writ of error. But it would seem, from the record in this case, that no533 "bond for a supersedeas was given, or supersedeas granted. The question is, was the judgment on the interplea conclusive as to the fraudulent character of the assignment, on the defendants, in the trial of the plea in abatement, filed by them? The point made that it does not sufficiently appear that the assignment was decided to be fraudulent, in the trial of the interplea, is not tenable. The assignment stood admitted, under the pleadings, and the sole question was, was it fraudulent? Judgment against the interpleader could not have been rendered unless the assignment had been found to be fraudulent. The assignment, therefore, was necessarily declared fraudulent and must be deemed as so determined. Armstrong v. St. Louis, 69 Mo. 310. By the judgment on the interplea, the assignment was declared fraudulent. By that judgment the inter-pleader was bound, and as to him the property attached was made subject to the lien of the attachment. As between the plaintiff and the interpleader, the assignment was fraudulent. The interpleader was concluded by the judgment so that he could not deny that the assignment was fraudulent. No one could do for the interpleader what he could not do for himself. -By denying that the assignment was fraudulent, and by asserting that the assignment was valid and binding, the defendants were merely asserting that the property attached was the interpleader’s property. In so doing they were asserting no right of their own. For it must be borne in mind that the whole property attached was included in the general assignment. The defendants, in so doing, were merely renewing the claim made by the interpleader. But the interpleader himself could not have renewed the claim. The interpleader himself was concluded. And so were the defendants. As concerned the defendants, the interpleader’s property had been subjected to the lien of the attachment; of this the defendants had no right to complain. [534] The defendants were concluded by the judgment on the interplea, not because they were parties to the inter-plea, but simply because they could not assert for the interpleader rights denied the latter by that judgment. The writ of error did not affect the judgment on the interplea, as concerned the issue between the plaintiff and the defendants, raised by the plea in abatement. A writ of error cannot operate as a supersedeas in any case except that in which it is taken. State ex rel. v. Thayer, 80 Mo. 439; The Mo. Pac. Ry. Co. v. Atkinson, 17 Mo. App. 495. Besides, no supersedeas bond was given, so far as is shown by the record in this case. Without such bond, the judgment was not affected at all by the writ of error. Without such bond, there was no supersedeas. Railroad v. Atkinson, supra. The case was tried in accordance with the views herein expressed. Judgment affirmed. All concur.