Fairbanks & Co. v. Kraft, Holmes & Co. , 43 Mo. App. 121 ( 1891 )

Ellison, J.

Plaintiffs and defendants, Kraft, Holmes & Co., are, creditors of the firm of Stickel & Botthoff who are insolvent. Defendant Shelton is a constable holding various executions against Stickel & Botthoff under which he sold their stock of groceries. This is an injunction proceeding to restrain the constable from paying over the proceeds of the execution sales, and the various creditors from receiving the same. The injunction was dissolved as to all defendants except the constable and Kraft, Holmes’ & Co., and against them it was made perpetual. No appeal was taken by the constable, and Kraft, Holmes &Co. alone complain.

They, on the sixth of February, 1889, by their agent, one Kirk, procured Stickel & Botthoff to give two notes for $76.21, each dated February 6, 1889, due one day after date, in settlement of their'indebtedness to them, and also procured from Stickel confessions of judgment thereon against the firm signed, “ Stickel & Botthoff, by L. R. Stickel,” upon which judgments were rendered by a justice of the peace on the same day, and he immediately issued executions thereon and placed them in the hands of defendant Shelton, the constable, who immediately levied upon the stock of goods of the firm. On the same day, both Stickel and Botthoff went before said justice, confessed judgments in favor of Henry Petring’s Grocery Company, and on the same day they went voluntarily before another justice of the peace and confessed judgments in favor of J. J. Wells & Co., and the Forsyth Milling Company. Executions- and writs of attachment were duly issued in each case and levied on the same goods on the same day, but all after the levy of Kraft, Holmes & Co.; and in due time the goods were sold by constable Shelton for about $700.

. The foregoing is a sufficient statement of the facts of the case for its proper disposition by us. Appellants contend that these facts do not constitute ground for an injunction, but in our opinion an injunction may be properly allowed. The judgments confessed were against a partnership, while the,confession was made by one partner only. This is not within the power of a partner, and the judgment, therefore, as to the firm, was invalid. Morgan v. Richardson, 16 Mo. 409.

The partnership property, however, and upon which plaintiffs had duly levied an attachment for their debt, was sold under such judgment and the proceeds were about to be paid over to appellants. In our opinion a proceeding to restrain such action is sustained by authority. Morgan v. Richardson, supra; Loth v. Faconesowich, 22 Mo. App. 68.

The judgment is affirmed.

All concur.