Marbourg v. Lewis Cook Manufacturing Co.

The opinion of the court was delivered by Hurd, J.: The creditors of Oscar O. Marbourg, to the number of twenty-one, instituted actions in the court below against him by attachments. The aggregate amount sought to be recovered in these several actions was about $17,000. Nearly all the actions were brought upon claims not due. A large amount of property was attached. The affidavits for attachments on the claims not due alleged, among other things, the grounds set forth in § 230 of the code. The affidavits for at [635] tachments upon the claims clue were drawn under § 190 of the code. In each case O. O. Marbourg filed a motion to dissolve the attachment, alleging that the grounds set forth in the affidavit for attachment were untrue. The motions in all the cases were heard at the April term of the district court for 1884, and on the hearing thereof it was agreed, inasmuch as each of the motions presented the same questions, that all should be heard together, and the evidence taken in any one case was used and considered in all the other cases, so far as the same was relevant and competent. On the hearing the court below overruled the motions to dissolve the attachments in each case, and the plaintiff in error now seeks to have this court review and reverse the action of the district court. Three questions are presented by plaintiff in error, as follows, viz.: “ First, that the findings of fact of the court below were not sustained by the evidence; second, that the court below erred in admitting to be read in evidence a copy of a bill of sale, without any effort being made to obtain the original, which was shown to be in existence; third, that the court erred in admitting other incompetent evidence.” The court, at the request of the parties, made its conclusions of fact and of law. Among its conclusions of fact is the following : “Although the defendant was indebted to said W. W. Marbourg, and said W. W. Marbourg held certain evidences of indebtedness against the defendant before the execution of said four promissory notes and said four chattel mortgages, yet said indebtedness was not near so large as the aggregate of said four promissory notes, as the defendant must have known; but the real indebtedness was greatly enlarged by the defendant in said four promissory notes,, and as so enlarged was secured by said four chattel mortgages for the purpose and with the intent on the part of the defendant of transferring all of his non-exempt personal property to said W. W. Marbourg in payment and satisfaction of his indebtedness to said "W. W. Marbourg, which was very much less than $21,236.43, and very much less than the value of the property covered by said chattel mortgages, and for the purpose of cheating and defrauding his other creditors who had sold him goods, and hindering and delaying them in the collection of their debts, [636] and not for the mere purpose of preferring said W. W. Marbourg as a creditor for the amount of the real, actual and existing indebtedness of the defendant to said W. W. Marbourg.” It was held in Wallach v. Wylie, 28 Kas. 138, that where a chattel mortgage was executed purporting to secure certain alleged indebtedness largely in excess of the bona fide indebtedness actually existing between the parties, and such excess was fraudulent, that the mortgage was void in toto, and could not be sustained even to the extent of the actual debt covered by the mortgage. This upon the ground that the statute of the state provides that every transfer of property made with the intent to hinder, delay or defraud creditors is utterly void, and of no effect. (Comp. Laws of 1879, ch. 43, § 2. See also Winstead v. Hulme, ante, p. 568.) Therefore, if there was evidence sufficient to sustain this finding of the district court, the attachments were properly sustained. The question was one of fact only. The testimony presented to the district court was not wholly by affidavit. Several witnesses, among others J. E. Black, a former partner of O. O. Marbourg, Ira F. Collins, and John Brady, gave their testimony in person to the court. We have read carefully the whole record, and are convinced that the findings of the court, and especially the finding above quoted, were sustained by the evidence presented in the court below. In a case of this kind, we cannot retry the facts upon the evidence and determine upon which side the preponderance exists. All we can do is to look into the evidence and see whether it is sufficient to sustain the findings of the court below; or in other words, to see whether there is such a lack of evidence that we can say as a matter of law that the findings are erroneous. (Gibbs v. Gibbs, 18 Kas. 419; Railway Co. v. Kunkel, 17 id. 145; Wilson v. Lightbody, 29 id. 446.) Under the findings of fact, the district court committed no error in sustaining the attachments. The other errors complained of, under this view, are immaterial, and therefore it is unnecessary to consider them. The ruling and order of the district court will be affirmed. — The above and foregoing decision in case No. 3363, also [637] disposes of cases Nos. 3364, 3365, 3366, 3367, 3368, 3369, 3370, 3371, 3372, 3373, 3374, 3375, 3376, 3377, 3378, 3379, 3380, 3381, 3382, and 3383. In all of these cases the ruling and order of the district court will be affirmed. All the Justices concurring.