First National Bank v. Cochran & Bozeman

Cooper, J.,

delivered the opinion of the court.

The appellees sued out an attachment against the firm of Lichtenstein & Metzger upon a claim of $600 for services rendered by them to said defendants as attorneys at law. The appellants, creditors of the defendants, petitioned for leave to intervene, under the provisions of § 174, code 1892, which provides that “any creditor of the defendant in attachment, upon filing a petition, under oath, averring that he is a creditor, and that the grounds of attachment alleged are untrue, or that the attachment was sued out by collusion between the plaintiff and defendant, or that the debt claimed by the plaintiff is fictitious or simulated, in whole or in part, or any other fact showing fraud or collusion in suing out the attachment, may intervene and mate defense; and in such case the facts stated in the petition shall be tried,” etc.

By their petition the intervenors stated that “the debt claimed by said Cochran & Bozeman was not owing to them by the said Lichtenstein & Metzger, but was a debt due and owing, if at all, by the defendant,’ W. Lichtenstein; and so said debt or claim was, as a debt or claim against said Lichtenstein & Metzger, fictitious, as petitioners believe and state and charge, and that the partnership property of said Lichtenstein & Metzger was not liable to said writ of attachment, the said Lichtenstein & Metzger being wholly insolvent.”

Since the only fact stated by the intervenors in their petition was that the debt claimed was not due by Lichtenstein & Metzger, but was due, if at all (which fact was not denied), by the defendant, Lichtenstein; and since the statute expressly declares that the trial upon the intervention shall be 'of the facts stated in the petition, it would seem that a very narrow question was presented in the lower court.

Having been admitted to defend, and having selected the issue they desired to make, the intervenors at once began to take exception to the sufficiency of the plaintiffs’ declaration, and to move for an itemized account of the services rendered, and took exception to the action of the court in overruling their exceptions and applications, and such action is now assigned for error.

We. are unable to see in what manner these matters concerned. the intervenors, in the light of the issue they had presented. They did not contest the existence of the claim asserted by the plaintiffs otherwise than to assert it to be the individual debt of Lielitenstéin instead of being a firm obligation. That the sum demanded was reasonable in amount and due by Lichtenstein was not disputed, or attempted to be. The sole contention was that the firm was not bound, and therefore its property could not be subjected to the payment of the debt. We can see nothing in the evidence even tending to prove the fact stated in appellants’ petition, and no other result than that reached in the lower court coirkl be permitted to stand.

During the investigation, it was made to appear that the plaintiffs in attachment had paid to the defendants, or to their attorneys for them, $300 in cash, in consideration, of the withdrawal by the defendants of their plea traversing the grounds upon which the attachment was sued out. The intervenors thereupon asked to be permitted to so amend their petition as to charge that the attachment had been sued out by collusion between the plaintiffs and defendants. The court refused to permit this to be done, and this is assigned for error. The action of the court in this respect was correct. The fact that the plaintiffs, after the institution of their suit, found themselves unable to maintain thp truth of the averments upon which the attachment was sued out, and thereupon paid the defendants not to defend, or to withdraw their plea putting in issue the said grounds of attachment, does not suggest that it had beefi sued out by collusion with the defendants. On the contrary, at suggests that the defendants were thriftily making profit of their advantage over their creditors by converting into concrete cash their abstract rights of defending the suits brought against them. In fact, it appears that the intervening creditors, who themselves had sued out attachments, had also paid to these insolvent defendants $750 in money, in consideration (in part, at least) of which they had withdrawn their plea to the action of these creditors. If bargains of like character. were made by these defendants with all attaching creditors, they should now be in very comfortable circumstances. They have, in any event, shown a “ new way to pay old debts,” and get good boot in the transaction.

The judgment is affirmed.