State ex rel. Schroeder v. Moos & Co. , 83 Mo. App. 2 ( 1899 )

BIGrG-S, J.

This is an action on an indemnifying bond. On the twenty-sixth day of January, 1898, the relators were copartners and were doing business under the firm name of the Missouri Eish Company. On that day the defendant Moos and Company sued out an attachment in the circuit court against the Canman-Voelkers Fish Company, a corporation. Under the direction of Moos and Company the sheriff levied the writ of attachment upon a stock of goods then in the possession of the Missouri Eish Company. The latter made claim to the property and the bond in suit was given by Moos and Company to indemnify the sheriff against the claim. The petition is in the usual form. The answer is a general denial. The jury returned a verdict for plaintiffs for the value of the goods. The defendants have appealed and complain of the insufficiency of plaintiffs’ evidence; that tbe circuit court erred in rejecting competent evidence, and in giving and refusing instructions.

Tbe case as now presented by counsel for defendants is tbat tbe goods in question formerly belonged to tbe Canman-Yoelkers Eisb Company; tbat they were sold by it to tbe Canman Eisb Company, another corporation; tbat tbe latter company sold tbe stock to tbe Missouri Fish Company; tbat tbe two transfers were made to defraud and defeat tbe creditors of tbe Camnan-Yoelkers Eisb Company in tbe collection of their demands, and tbat the members of tbe Missouri Eisb Company were cognizant of tbe fraud and participated therein. In attempting to establish this defense counsel failed to introduce any evidence tbat tbe goods in question formerly belonged to tbe Oanman-Yoelkers Eisb Company, and no offer of proof by him tended in tbe remotest degree to establish tbat fact. Therefore tbe assignments of error, which are based on offers of proof as to fraudulent purchases and sales by tbe Canman-Yoelkers Eisb Company must be overruled.

Clearly such evidence was irrelevant in tbe absence of proof tbat the goods levied upon at one time belonged to tbat corporation. For tbe same reason all of tbe instructions asked by tbe defendants were properly refused.

Tbe assignment tbat tbe plaintiffs’ evidence was insufficient to justify a recovery must likewise be overruled. It was undisputed tbat tbe relators were in tbe actual possession of tbe stock of goods at tbe time tbe attachment writ was served. This made for tbe relators a prima facie case of ownership of the goods. State ex rel. v. Hope, 88 Mo. 435; Weeks v. Etter, 81 Mo. 375; Simmons v. Austin, 36 Mo. 307; Martin v. Fox, 40 Mo. App. 664.

Finding no error in tbe record, tbe judgment will be affirmed.

All concur.