Writ of error brings for review judgment in favor of the plaintiff in attachment in a suit on the claim affidavit of a third party.
Section 3430 R.G.S., 5283 C.G.L., provides: "If any attachment shall be levied upon property claimed by any person other than the defendant in attachment, such person may, at his option, replevy the same or interpose a claim in the manner provided in case of execution."
Section 2830 R.G.S., 4517 C.G.L., provides the manner in which possession of property levied upon under execution may be obtained by a third person claiming title and right of possession thereto and Section 2832 R.G.S., 4519 C.G.L., provides for the trial of the rights of property under the claim affidavit.
When claim is interposed to property taken under execution or levy of attachment the rights of the claimant become the subject of the separate and independent suit. *Page 141
All questions raised by plaintiff in error here have been settled adversely to his contention by former decisions of this Court.
In Claflin Co. v. Harrison, et al.,
In Cohen, et al., v. Harris, et al.,
In the same case it was held: "In a claim proceeding under the statute, it is improper and erroneous to permit either the claimant or his attorney to testify as to consultations between them and conversations had, or advice given by the attorney to the claimant, at which the opposing party in interest was not present."
In the case of First National Bank v. Wittich,
By analogy it must be held that an agreement by which the vendor of a stock of goods, wares and merchandise which is sold and delivered to a vendee to be disposed of in the usual course of trade attempts to retain title to such stock of goods, wares and merchandise is fraudulent and void as to creditors of the vendee. See Ackman v. Munnerlyn,
The fifth and sixth questions challenge the sufficiency of the verdict. The question of the sufficiency of the verdict is raised for the first time in this Court and, therefore, cannot be relied upon for reversal. We may say in passing, however, that the verdict was as follows:
"We, the jury, in the above entitled cause, find that the right of property is with the plaintiff in attachment against the claimant, L.M. Kent, and subject to the attachment issued in this cause as to the stock of goods, wares and merchandise levied upon: That in all other items included in the property levied upon the right of property is with the claimant, L.M. Kent: We further find the value of the goods, wares and stock of merchandise levied upon is more than the sum of $500.00. So say we all, This November 10th, 1936."
In General Motors Acceptance Corporation, et al., v. Judge of the Circuit Court,
So we hold the verdict sufficient.
The judgment should be affirmed and it is so ordered.
ELLIS, C.J., and TERRELL, J., concur.
WHITFIELD, P.J., and BROWN and CHAPMAN, J.J., concur in the opinion and judgment. *Page 143