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(2 Ariz. 16)
SUPREME COURT OF ARIZONA.
CULLUM V. PAUL.
Filed September 3, 1885.
1. ASSIGNMENT FOR BENEFIT OF CREDITORS-ACTION BY ASSIGNEE TO RECOVER PERSONAL PROPERTY.
An assignee for the benefit of creditors, after he has taken possession of the personal property conveyed to him by the deed of assignment, and has been wrongfully deprived thereof by a third party, can sue in his personal capacity to recover possession of the property.
In the case of a general voluntary assignment for the benefit of creditors, without preferences and without restrictions, in the absence of proof of dissent, the law presumes the assent of the creditors to the assignment for their benefit. 3. APPEAL-REVIEW OF FINDINGS.
The findings of the court below will not be reviewed on appeal unless there was a motion for a new trial.
4. SAME-STATEMENT NOT PURPORTING TO CONTAIN ALL EVIDENCE-VERDICT NOT SUSTAINED BY EVIDENCE.
When the statement on appeal does not purport to contain all the evidence, the appellate court will not consider an objection that the verdict is not sustained by the evidence.
Appeal from the judgment of the district court, Pima county, in favor of plaintiff and respondent.
Benj. Morgan, for appellant.
Earll & Campbell, for respondent.
HOWARD, C. J. This is an action brought by plaintiff to recover from the defendant the possession of certain goods, wares, and merchandise alleged to have been wrongfully taken by defendant from plaintiff, or for the sum of $35,000, the alleged value thereof, in case delivery cannot be had. The answer contains denials of the allegations of the complaint, and a further and separate answer and defense, alleging that defendant, as sheriff of Pima county, had seized and taken possession of the goods, etc., under an attachment issued from the district court of Pima county in the case of G. Howard Thompson v. Lord & Williams, further alleging that goods, etc., were, at the time of seizure, in possession of and the property of Lord & Williams. The case was tried by the court without a jury.
The court found substantially that on the twenty-fifth day of October, 1881, the goods, etc., in question were the property of the firm of Lord & Williams Company, composed of C. H. Lord, W. W. Williams, and C. E. Harlow, and that on that day said firm made a general assignment of all their property not exempt from execution to plaintiff, for the equal benefit of all their creditors, and plaintiff accepted said assignment and received said goods, etc., from said firm and took possession thereof, and that said assignment was made in good faith; that defendant, as sheriff of Pima county, on the twenty-eighth day of October, 1881, seized and took said goods, etc.,
from the possession of plaintiff under an attachment that day issued from the district court of Pima county in the case of G. Howard Thompson v. Lord & Williams; that said property, when so seized and attached, was the property of plaintiff, and not subject to such seizure or attachment, and that the value thereof was $35,000.
The court found, as conclusions of law, substantially that the said goods, etc., were wrongfully taken and detained by the defendant from the possession of plaintiff, and that plaintiff was entitled to a judgment for the return of said property, and if the same cannot be made, for the sum of $35,000 against defendant. A judgment was entered upon their finding, in the following words:
"The court having this day signed and filed its findings of fact and conclusions of law in this case, and the value of the property claimed having been found by the court to be the sum of thirty-nine thousand dollars, and the property claimed having been taken into possession of the plaintiff, therefore it is adjudged that the plaintiff have and retain possession of the personal property described in the complaint, with the costs," etc.
The case is brought up on appeal from the judgment alone. There was no statement on motion for a new trial. The record contains the judgment roll, a statement on appeal signed by attorneys for plaintiff and defendant, and defendant's specification errors. The statement on appeal sets out evidence given at the trial without purporting to contain all the evidence given at the trial. We will now proceed to notice defendant's specification of errors:
1. "The court erred in refusing to sustain the objection made by defendant to the introduction of the power of attorney offered by the plaintiff." There is nothing in the record showing this to have been error. The power of attorney was duly authenticated and was pertinent, and was part of plaintiff's evidence of title.
2. "The court erred in permitting the articles of agreement of the partnership between Lord & Williams Company to be read in evidence against defendant's objection." The record shows no error in this. The agreement was a part of plaintiff's evidence of title, and was duly proved.
3. "The court erred in admitting in evidence the assignment made by Lord & Williams Company to plaintiff Cullum against defendant's objection." The record shows no error in this. The assignment was a part of plaintiff's evidence of title, and was duly proved.
4. "The court erred in refusing to grant the motion made by defendant to strike out the testimony introduced by plaintiff in the case on the ground of variance between it and the allegations of the complaint."
5. "The court erred in refusing to pass upon and grant defendant's motion for a nonsuit made on the conclusion of plaintiff's case, on the ground that the plaintiff had failed to make out his cause of action as alleged in his complaint." The record shows that these two specifications of error, as well as the first three, were based on an as
sumption by defendant that because plaintiff in his complaint had sued simply in his individual capacity, without showing his character as assignee, that therefore he should not be permitted to give in evidence the several instruments going to show title in him as assignee. The question raised is whether this assignee, after he has taken possession of the personal property conveyed to him by the deed of assignment, and has been wrongfully deprived thereof by a third party, can sue in his personal capacity to recover possession of the property, or whether he is bound to sue in his representative capacity. The authorities leave no doubt on this question. It is expressly held in Hogland v. Trask, 48 N. Y. 686, and Ogden v. Prentice, 33 Barb. 160, that an assignee may sue either in his personal or representative capacity. It is a familiar rule that an executor or administrator, after he has reduced the goods of the estate to his possession, and has then been wrongfully deprived of them, may sue for the recovery thereof in his individual capacity. It is clear that the record shows no such errors as are claimed in fourth and fifth specifications of er
6. "The defendant assigns as further ground of error the insufficiency of said findings to warrant or support the judgment in favor of plaintiff, on the ground that said findings show that the plaintiff, H. B. Cullum, held said property by virtue of the assignment of Lord & Williams Company, and as trustee for the purpose of paying the creditors of said firm; that at the time of the levying of the attachment in the case of Thompson v. Lord & Williams by the defendant herein, by virtue of which he took possession of said goods, etc., no creditor of said firm had assented to said assignment or become a party thereto in any way." It is a sufficient answer to this specification of error to say that the findings nowhere show that at the time of the levy of the attachment "no creditor of the firm had assented to said assignment or become a party thereto in any way." We will add, however, that in the case of a general voluntary assignment for the benefit of creditors without preference, and without restrictions, as the record shows this to have been, in the absence of proof of dissent, the law presumes the assent of the creditors to the assignment for their benefit. Grover v. Wakeman, 1 Amer. Lead. Cas. 72; Nicoll v. Mumford, 4 Johns. Ch. 523, 529.
7. Also that there is no evidence that at the time of making of the said assignment there were any creditors of Lord & Williams Company, for whose benefit said assignment was made, and said Cullum claimed to hold said property. If this specification means that the findings show there was "no evidence," (and to entitle it to the consideration of this court it must mean that,) then a sufficient answer to it is that the findings show no such thing; but, on the contrary, it is shown by the first finding that at the time of making the assignment the firm of Lord & Williams Company were insolvent, a condition that presupposes creditors.
8. The specification of errors then proceeds as follows: "The defendant further shows the insufficiency of the evidence to justify the findings of facts and conclusions of law, upon the following grounds," and then elaborately sets out 15 distinct grounds. This specification and the grounds therefor cannot be considered by this court.
9. The record shows no statement on motion for new trial, and no motion for new trial. This is an attempt to review the findings of the court without a motion for a new trial. The findings of the court below will not be reviewed on appeal unless there was a motion for new trial. Frederico v. Hancock, 1 Ariz. 512. In Gagliardo v. Hoberlin, 18 Cal. 395, the defendant brought up all the evidence, but made no motion for a new trial. The court say:
"In this case, no motion having been made for a new trial, the findings of the court are conclusive as to facts."
Mr. Justice FIELD, in Duff v. Fisher, 15 Cal. 380, says:
"In this state the statute provides the manner in which the verdict of a jury, upon an issue submitted to its decision, may be reviewed. It is only by a motion for a new trial."
The statutes of California and Arizona are identical on this subject, and findings by the court stand on the same footing as the verdict of the jury Though this doctrine is firmly established by an unbroken line of decisions in California construing a statute identical with our own, yet the whole doctrine is so ably and fully set forth by the supreme court of California in Reed v. Bernal, 40, Cal. 628, that we will quote at length from that decision. The court says, page 630 et seq.:
"When a party complains that the evidence was insufficient to justify a verdict or decision, the appropriate remedy is by motion for a new trial, and in pursuing this remedy the statute requires him to specify in his statement in support of the motion the particulars in which the evidence was insufficient. In this method the attention of the court and counsel is particularly directed to the precise point in which the evidence is alleged to be insufficient, so that on the trial of the motion the court may review the evidence and exercise its judgment and discretion, either by upholding or setting aside the verdict or decision. It is conceded on all sides that if there be any evidence whatever tending to support the verdict or decision, its sufficiency can only be determined, and the evidence reviewed for that purpose, on a motion for new trial, and we have repeatedly held that if there be a substantial conflict in the evidence, this court will not disturb the verdict or findings. It is equally well settled that if there be no findings in a case tried by the court without a jury, and no proper exceptions for want of findings, a presumption arises that the court found all the facts necessary to support the judgment. If there be no actual findings, the law implies findings sufficient to sustain the judgment. In all cases, therefore, whether there be a verdict or written findings, or only the findings which the law implies in support of the judgment, if it be claimed that there was no evidence whatever to support the judgment, this is only another mode of saying that the evidence was insufficient to justify the verdict or findings, as the case may be. If the verdict or written findings support the judgment, it is too plain to admit of discussion that, so long as the verdict or written findings remain undisturbed the judgment cannot be assailed on the ground that is not justified by the evidence. Before
the judgment can be attacked on this ground the verdict or findings must be set aside because not justified by the evidence, and this can only be done on motion for a new trial."
Such is the law of California and Arizona, and it is decisive of this The findings of the court in this case clearly warrant and support the judgment, and in the absence of a motion for a new trial these findings are conclusive and binding upon this court.
There is another serious obstacle in the way of defendant in his attack upon the findings of fact and conclusions of law. It is that the statement on appeal does not purport to contain all the evidence, and in examining the whole record it is evident that it does not. When the statement on appeal does not purport to contain all the evidence, the appellate court will not consider an objection that the verdict is not sustained by the evidence. Moore v. Tice, 22 Cal. 514. It will be seen by the judgment copied into this opinion that in its recital it states that it was found by the court the value of the property was $39,000, whereas the findings show that the value was $35,000. This is evidently a clerical mistake in the party who draughted the judgment. The judgment shows that the property was in the possession of the plaintiff, and this error in the recital of the judgment can be of no possible damage to defendant. If any one could be damaged by this error, it would be the plaintiff, as the judgment shows that he is in possession of the property, and he and his sureties are responsible for its value.
The judgment of the court below for $35,000, costs, etc., is affirmed.
PINNEY, J., concurring.
FITZGERALD, J., having presided at trial in court below, took no part in this case on appeal.