H. B. Claflin Co. v. Harrison

Citations

• 44 Fla. 218

Syllabus

<p>1. One who interposes a claim under the statute to property levied upon by virtue of a writ of attachment can not be permitted to prove at the trial of such claim that no valid levy of the attachment had been made, as the validity of the levy of the process can not by the claimant be made an issue between himself and the plaintiff in the process in such proceeding.</p> <p>2. In claim proceedings under the statute the burden of proof . is upon the claimant, who must recover upon the strength of his own title and right to possession of the property claimed, and the claimant has the right to open and close.</p> <p>3. An assignment for the benefit of creditors which purports upon its face, or is shown by other evidence, to include only a part of the assignor’s property and to have been made for the benefit of a portion only of the assignor’s creditors is, under section 2307 Revised Statutes, void as to attaching creditors of the assignor.</p> <p>4. An attachment issued at -the instance of a creditor of the assignor and levied upon property embraced in an assignment theretofore executed which is void as to such creditor under section 2307, Revised Statutes, because it embraces only a part of the assignor’s property and is made for the benefit of a portion only of the assignor’s creditors, can not be displaced, or the rights of such attaching creditor thereunder cut off by the making of a subsequent assignment for creditors in proper form, even though it was intended by such new assignment to correct the fatal defects in the former one.</p> <p>■5. Subsequent, to the institution of a claim proceeding by an assignee f<?r creditors for property embraced in the assignment levied upon by virtue of a writ of attachment issued at the instance of a creditor .of the assignor, a judgment was obtained in the attachment proceeding upon which execution issued,' and át the time of the trial of the claim proceeding such execution had been paid in full. The execution had, however, bee