Kerr Thread Co. v. Star Knitting Works

Mr. Justice Freeman, after making the above statement, delivered the opinion of the court. The record in this cause is voluminous, and numerous errors are assigned; but the substance of them is that the court erred in dismissing the bill for want of equity, and in refusing to hold the original transfers by the judgment debtor, and especially the sale of the machinery and book accounts to Belding Bros. & Co., void as against the complainants. The evidence tends to show that the debtor corporation owed the plaintiff in error for material purchased, and being unable to pay the debt when due, sought to obtain an extension. This being refused and suit commenced against it, its managers, considering that a judgment and execution would break up the business and enable plaintiff in error to obtain payment at the expense of the other creditors, determined to protect the creditors who were not pressing them. Accordingly, the debtor transferred all its assets, in payment of what it owed to the bank, to Belding Bros. & Co. and to one Prenzlaner. It is contended by plaintiff in error that these transfers were not made in good faith. But no facts are alleged from which bad faith can be inferred, and it is not contended in the brief filed by plaintiff in error that the debtor corporation was not, in fact, indebted to the parties to whom the transfers were made. We find no sufficient evidence tending to show that the transferees were fraudulently seeking to hinder and delay other creditors. They were entitled to payment of their own debts, even though such payments exhausted the assets. It is by no means clear that by a forced sale of the property so transferred, enough could have been realized to pay the debts due them, or that the consideration paid was inadequate. But it is said that the subsequent transfer to Mrs. Peterson by the purchasers, and allowing her to reorganize and run the business, is evidence of a fraudulent purpose to enable the original stockholders to obtain control, “ subject only to the debt or liability of these three creditors.” The evidence fails to justify such a conclusion. If these three creditors obtained a good title to the property by the purchase, then they had a right to use it as they deemed best to enable them to realize in cash the amounts due them and paid by them as the consideration for the transfer. It is said the transfer of the book accounts to Belding Bros. & Co. was fraudulent. But the evidence fails to sustain the charge. It is quite possible that they may in the end realize more than their debt, but it is not clear at all that this has been or will be the result. ÍTor can we agree with counsel for plaintiff in error that it was error for the trial court to deny the motion for reference to a master. This was a matter within the reasonable discretion of the trial court, and it does not appear that this discretion was not properly exercised. We think it was. The bill did not seek for an accounting. We find no substantial error in the rulings of the trial court upon the merits. In view of the conclusion thus reached, there is no occasion to consider the motion to strike the reply brief from the files, nor to discuss the point made by defendant in error that the certificate of evidence filed June 30, 1896, in the trial court, is improperly in the record. It has been repeatedly held that amendments to the record after the close of the term at which the case was finally disposed of should not be allowed, where there is no memorandum, minute or note of the judge, which can be made a part of the record, by which to amend; and that the mere recollection of the judge or affidavits of witnesses as to their recollection of what was said or done, do not supply the place of such minute or memorandum so made and preserved as a part of the record. Dougherty v. People, 118 Ill. 160; Horner v. Horner, 37 Ill. App. 199; People v. Anthony, 129 Ill. on p. 222. The decree of the Circuit Court is affirmed.