Salmon v. Mills

TI1AYEII, Circuit Judge. This case was before this court at a former term, and is reported in 4 U. S. App. 101, 1 C. C. A. 278, 49 Fed. 333. Before the case was retried, G. Y. Salmon, the plaintiff in error, who was also the plaintiff in the trial court, filed an amended affidavit for an attachment, alleging therein the following-grounds, to wit: “First, that the above-named, defendants are about to remove and have removed their property, or a material pa.rt thereof, out of the Indian Territory, not leaving enough therein to satisfy the plaintiff’s claim or the claim of, defendants’ creditors; second, that they have sold, conveyed, and otherwise disposed of their property, and suffered and permitted it to be sold, with the fraudulent intent to cheat, hinder, and delay their creditors; third, and that they are about to sell, convey, and otherwise dispose of their property with such intent.” These are declared to be grounds of attachment by the Arkansas statute concerning attachments, which has been extended over and is in force in the Indian Territory, Mansf. Dig. Ark. c. 9, § 309, subds. 6-8. The defendants moved to strike out the second and third grounds of attachment above stated because they were inconsistent and rendered the affidavit uncertain and misleading, which motion was sustained by the trial court. The plaintiff was thereupon compelled to proceed to trial on an affidavit which alleged but a single ground of attachment. The single ground' of attachment not hawing been sustained by the evidence, the attachment was dissolved, and the case has been brought to this court on a writ of error. An exception was duly taken to the action of the trial court in sustaining the motion to strike out the second and third grounds of attachment. and its action in that behalf is the only error which we feel called upon to notice. Counsel have attempted to sustain the action of the trial court by the contention that the word “property,” as used in the affidavit and in subdivisions 7 and 8 of the Arkansas statute, supra, must be taken to mean all of the defendants’ property, and that an affidavit which first alleges that a defendant has sold and conveyed his property with intent to cheat, hinder, and delay his creditors, and in the next sentence alleges that he is about to sell and convey his property with such intent, is necessarily inconsistent and self-des true live. . The error in the argument consists in the assumption that the word “property,” as used in the statute, means all of the debtor's property, if (hat is the correct construction of the statute, then it follows that an attaching creditor seeking to maintain an attachment on the ground that the debtor has sold and conveyed Ms property with intent to cheat, hinder, and delay his creditors must fail unless he shows a fraudulent sale or conveyance by the debtor of all his property. This is not a correct interpretation of'the statute. A creditor is entitled to a writ of attachment if lie succeeds in showing that Die debtor has disposed of a portion of tiis property with the fraudulent intent of cheating Ms creditors. It was so held in Nelson v. Munch, 23 Minn. 229, and such is undoubtedly the general understanding of the profession in all of those states where a fraudulent sale or conveyance of property is [182] made a ground of attachment. Smith v. Baker, 80 Ala. 318; Drake, Attachm. (7th Ed.) §§ 101, 102, and cases there cited. A construction of the statute which would require an attaching creditor, in order to sustain an attachment, to prove a fraudulent sale or conveyance by the debtor of all his property, would render that clause of the statute concerning attachments of little practical value. It must be held, therefore, that the second and third grounds of attachment stated in the affidavit were neither inconsistent, uncertain, nor misleading. It may have been true that the defendants had sold and conveyed a portion of their property with intent to cheat, hinder, and delay their creditors, and that they were about to sell another portion of their property with the same intent. The plaintiff was entitled to an opportunity to prove either or both of these facts, to sustain the writ, and proof of either fact would have sufficed to sustain it. While it is to be regretted that a case of such long standing as the one at bar must be reversed the second time for the reasons above indicated, yet the error is of such nature that it cannot be disregarded. The judgment of the lower court is reversed, and the cause is remanded to the United States court in the Indian Territory, with directions to vacate so much of its order made on January 31, 1894, as sustained the motion to strike out the second and third grounds of attachment contained in the affidavit for attachment on that day filed. And inasmuch as the record discloses that the original affidavit for attachment has been many times amended, and that numerous motions have already been made by the defendants either to strike out portions of the affidavit or to dissolve the attachment, it is further ordered that the retrial of the case be had on the last-amended affidavit for an attachment, which appears to have been filed on January 31, 1894, and that the plaintiff be allowed an opportunity to establish, if he can, either one or all the three grounds of attachment therein alleged.