Schunk v. Moline, Milburn, & Stoddard Company

Statement by Mr. Justice BREWER:

On the 14th of November, 1891, defendant in error commenced a suit against B. A. Schunk, in the circuit court of the United States for the district of Nebraska, on several notes, some of which, amounting to $530.09, were past due, while the others, amounting to $1,664.04, were not then due. The prayer of the petition was in these words:

'Wherefore the plaintiff prays judgment against the said defendant for the said sum of $530.09, with interest thereon from the respective dates of the notes which are now past due, together with the further sum of $1,664.04, which will become due and payable the 1st and 8th days of December, 1891, with interest thereon from the respective dates of said promissory notes, and the plaintiff prays that it recover a judgment for all of its costs paid out and expended in this action; and plaintiff further prays for a judgment against said defendant for all reasonable costs of collection of the above-mentioned indebtedness, and for a judgment, including plaintiff's attorneys' fees, in the sum of $250.

Under the provisions of the state statutes, an attachment was issued against the property of the defendant. The section authorizing this is in these words:

'Sec. 237. A creditor may bring an action on a claim before it is due, and have an attachment against the property of the debtor, in the following cases: First. Where a debt or has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts. Second. Where he is about to make such sale, conveyance, or disposition of his property, with such fraudulent intent. Third. Where he is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering and delaying them in the collection of their debts.' Cobbey, Consol. St. 1891, p. 1003.

Subsequent sections prescribe the proceedings to be pursued, the regularity of which in this case is not challenged. A demurrer to the petition, on the ground, among others, that no cause of action was stated, was overruled, a motion to discharge the attachment denied, and judgment rendered on May 21, 1892, for the sum of $2,347.50, together with $100 as an attorney's fee. To reverse this judgment the defendant below, as plaintiff in error, has sued out a writ of error from this court.

Mr. Justice Field, dissenting.

W. J. Lamb and Ricketts & Wilson, for plaintiff in error.

[Argument of Counsel from pages 501-503 intentionally omitted]

John L. Webster, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.