Meeker v. Galpin

Morphy J. This action is brought on four bills of exchange accepted by the defendant Samuel Galpin, jn favor of plaintiff, amounting to $1225 84, and on an open account for $423 79. It is alleged that those bills were given in payment of the price of fifty-seven kegs of butter sold to Samuel Galpin, yet in the store and possession of the debtor, and subject to the vendor’s privilege, to which the petitioner is entitled as the holder of said drafts. It is further alleged that Galpin has become insolvent and unable to meet his engagements ; that in order to deprive his creditors of their just claims he has made, within the last eight days, a collusive, fraudulent, and simulated sale to W. G. Morehead of all his property and effects, consisting of the stock in trade of the store occupied by him ; that Morehead was the clerk of Galpin, and without any means to purchase ; that the sole object and intention of the sale was to cover the property, and put it beyond the reach of his creditors, until 'it could be converted into cash; that part of the stock so conveyed was the merchandize on which the the plaintiff has a privilege ; that Galpin possesses no property [261] whatever except that thus fraudulently assigned ; and that the petitioner fears, that during the pendency of the suit, the defendants will dispose of the goods, unless they be sequestered. The petition concludes with a prayer for a sequestration, for judgment against Galpin, and for the rescission of the sale of his stock in-trade to Morehead, &c. The defendants filed separate answers pleading the general issue, denying the fraud and collusion charged in the petition, and avering that the sale from Galpin to Morehead was a bona fide transaction, in which a valuable consideration had been given by the purchaser, &c. There was a judgment below for the amount claimed, and for the rescission of the sale. The defendants have appealed. A motion to dismiss this appeal was made on the ground that there was no statement of facts ; the one appearing on the record hav ing been made loo late, and contrary to law. The record shows that a suspensive appeal was first taken without any statement of the evidence having been made, but that, on a motion to that effect, the judge ordered an execution to issue, notwithstanding the appeal, on the ground that the security furnished by the appellants was insufficient. A few weeks after, other counsel employed by defendants with a view to a devolutive appeal, applied to the plaintiff’s counsel to join him in making out a statement of facts. On the refusal of the latter to do so, the counsel made out one from information derived from the witnesses sworn on the trial, and submitted it to the judge, who adopted it with some slight corrections. A devolutive appeal was then prayed for and granted. The Code of Practice has fixed no time for making out a statement of facts ; but from the words of article 602 it is clear that it must be at least before an appeal is taken, for it is to be procured, says that article, by the party intending to appeal. This court has, therefore, held, that a statement of facts can be made at any time after the judgment is signed, provided it be before the appeal. 8 Mart. N. S. 303. 16 La. 138, 237. It is urged that in this case it was too late to make a statement of facts, after the first appeal was granted, and that the second appeal was improperly allowed, the first not having been set aside. It is true that the first order was not formally set aside, but it became inoperative from the failure of the defendants to comply with its terms, and [262] no appeal could have been brought up under it. 2 La. 86. After the ten days and during one year from the date of the judgment, the defendants were entitled to a devolutive appeal, to obtain which it was necessary for the judge to give an order fixing the amount sufficient to cover costs, and accepting good and sufficient security. To make good this appeal, we think the defendants were yet in time to make out a statement of facts. On the merits, we assent to the conclusion to which the judge below arrived. The sale from Galpin to Morehead, his clerk, although apparently for a valuable consideration, appears to us also to have been a simulated one. No attempt has been made to show from what source Morehead derived the means of purchasing the stock in trade of his employer, from whom he had been receiving, up to the time of the sale, a salary of about $35 per month ; and after the sale Galpin remained in possession of the store, acting apparently as the clerk of his former clerk. As to the insolvency of Galpin, the allegation that he possessed no property whatever, except that conveyed to his clerk, has not been disproved. This sufficiently shows that the petitioner would have been injured by the sale. Civil Code, arts. 1966, 1980. Judgment affirmed.