State ex rel. Schroeder v. Mattlage

BOND, J. Defendants were creditors of the “Canmann-Voelkers Eish Company,” a trading corporation, and [385] in 1898, brought suit by attachment, which was levied upon certain goods and effects in the hands of plaintiffs, a co-partnership, under the.firm- name and style of the “Missouri Eish Company.” Thereupon said co-partnership made written claim of absolute ownership in said goods, whereupon defendants executed the bond now sued upon to indemnify the attachment officer, who thereafter proceeded with the sale of the attached property. To recover the value of the same plaintiffs brought the present action upon said bond. The answer was a general denial. There was a verdict for defendants, from which plaintiffs have appealed. The first error assigned is the ruling of the court admitting, over plaintiffs’ objection, testimony tending to show that the defendant in the original attachment suit (the Canmann Voelkers Eish Co.), acquired title to the attached property by fraud. The tendency of such evidence was to show that the managing officers of that corporation were wrong-doers or tort-feasors engaged in a general plan of cheating and defrauding those persons who sold goods to it. The evidence in question had no tendency to support the charge of fraud on the part of the corporation in disposing of the goods to which it had acquired title however wrongfully. It should therefore have been excluded from the jury as irrelevant to the issues in this case which were simply whether or not the present plaintiffs participated in the fraud of the defendant in the attachment suit in the disposition by it of its assets. The fraud of the latter co-rporátion was established by the final judgment in the attachment suit against it, hence the only issue in this ease was whether or not the plaintiffs herein were mediately or immediately connected with that fraud, or participated in its consummation. As to this inquiry, clearly evidence of the manner of acquisition of title by the [386] original defendant in the attachment ■ suit was wholly immaterial and incompetent. Bangs Mill Co. v. Burns, 152 Mo. l. c. 365 et seq.; Stokes v. Burns, 132 Mo. l. c. 221-226. There is ho lack of scope in the general denial contained in the answer to warrant any evidence which would.tend to disprove title in the present plaintiffs. Scudder v. Atwood, 55 Mo. App. 512. The question is not one of breadth or latitude of pleading; it is rather one of proof-power of evidence under the rule requiring the testimony to be confined to the issues on trial. The testimony complained of had no logical bearing on the issue of fraud in the title of the present plaintiffs, who were prejudiced by its misreception, since its only effect could have been to confuse the minds of the jury as to the true issues submitted for their determination, probably leading them to infer erroneously that the fraud on the part of the original defendant in the attachment suit was the sole question to be resolved by their verdict. There are also some tautologies and inaccuracies in the instructions given of the court’s motion and at the request o£ respondent, which may be corrected upon a new trial. The rule of law governing this case is, that the burden of proof is upon plaintiffs to show title in themselves to the goods in controversy as against the right of defendants as attachment creditors. While possession makes a prima facie case in the absence of countervailing evidence, still this is a mere presumptive right in the plaintiffs which in no wise relieves them from the burden of sustaining their title by other evidence when their prima facie case has been met by evidence 'of fraud in the disposition of the property by the immediate transferrer to plaintiffs. Eor the reasons herein given, the judgment is reversed and the cause remanded. All concur.