Introduction to Boosinger v. JS et al. and Boosinger v. O. Cowdery et al.

Document Transcript

Boosinger v. JS, O. Cowdery, Rigdon, and H. Smith
Caldwell Co., Missouri, Circuit Court, 10 November 1839
 
Boosinger v. O. Cowdery, JS, and H. Smith
Caldwell Co., Missouri, Circuit Court, 12 November 1839
 
Historical Introduction
In early 1839, Asa D. Brashear, an agent representing Latter-day Saint , initiated two lawsuits against JS and other Latter-day Saint leaders, seeking payment on past-due debts. Boosinger had loaned $935 to the church in May 1836, and JS and other church leaders signed two promissory notes on those loans—one for $735 and the second for $200—due in two years, with interest. In 1838, conflict between Latter-day Saints and other Missourians resulted in Governor ordering the expulsion of church members from the and the arrest of JS and other church leaders. Boosinger granted power of attorney to Brashear on 31 October 1838, authorizing him to collect Boosinger’s outstanding debts, and left Missouri soon thereafter. He resettled in , while JS and spent the winter of 1838–1839 confined in the in , Missouri.
The two promissory notes remained unpaid, and in January 1839, Brashear, with the assistance of , Missouri, attorney , initiated a lawsuit against , JS, and on the $200 note in the circuit court of , Missouri. Brashear and Rees employed a “petition in debt” action, a special debt-collection provision passed by the legislature “for the speedy recovery of debts due on bonds and notes.” In accordance with the statute, Brashear filed a petition and a copy of the promissory note with the court, as well as an affidavit alleging that the defendants intended “to remove or convey— or dispose of their property or effects so as to hinder or delay their creditors.” Based on the affidavit and an accompanying bond, circuit court clerk issued a writ of , a document that ordered Sheriff to seize the defendants’ property in the county in advance of the trial.
Two months later, during the March 1839 term of the Circuit Court, Brashear and initiated a lawsuit against JS, , , and on the other promissory note for $735, filing a employing the common law action of assumpsit, or breach of contract, and claiming $1,000 in damages. As in the earlier suit, Brashear asked the court to issue a writ of , asserting in the accompanying affidavit that JS and his cosigners would dispose of their property to defraud their creditors. issued the writ of attachment to John Skidmore—the new Caldwell County sheriff—who levied both land and personal property belonging to Hyrum Smith. Skidmore found no property in the county belonging to JS, Cowdery, or Rigdon, leading the court to dismiss the writ of attachment against them at the July 1839 term.
Both cases came to trial at the November 1839 term of the court, with Judge of the fifth judicial circuit presiding. The court record indicated that both parties were represented by their attorneys. The suit on the $735 note was heard on 10 November. The defense counsel filed a motion to have the writ of dismissed; King denied the motion. The counsel then pleaded , presumably arguing that Brashear’s construal of the original agreement between and the defendants was incorrect. King ruled in favor of the plaintiff, assessing the damages at $805 plus costs. As for the suit on the $200 note, which was heard on 12 November, King held that the plaintiff should recover the amount of the note and $23.61 in damages. issued writs of in each suit, ordering Skidmore to sell the property previously attached in both cases in order to satisfy the judgments. The sheriff held an auction for the properties on 9 March 1840. Brashear won both auctions, bidding $30 for the 97 acres seized for the suit for the $735 note and $45 for the 180 acres attached in the suit for the $200 note.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.

Footnotes

  1. 1

    It is unknown whether Boosinger knew about these lawsuits.  

  2. 2

    The first promissory note, signed on 23 May 1836 by JS, Oliver Cowdery, Sidney Rigdon, and Hyrum Smith, was for $735 and was payable in land in Missouri or money. The second note, signed on 26 May 1836 by Oliver Cowdery, JS, and Hyrum Smith, was for $200, and was payable only in money. Boosinger had apparently made at least one prior loan to church leaders. JS’s journal for 29 March 1836 noted that Boosinger had “administered unto us [JS and others] in temporal things in our distress.” (Promissory Note, 23 May 1836 [Boosinger v. JS et al.]; Promissory Note, 26 May 1836 [Boosinger v. O. Cowdery et al.]; JS, Journal, 29 Mar. 1836.)  

  3. 3

    See Documents, Volume 6, Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839.  

  4. 4

    Ray Co., MO, Deed Records, 1820–1927, vol. C, p. 233[b], 31 Oct. 1838, microfilm 959,270, U.S. and Canada Record Collection, FHL. Brashear apparently was not a member of the church.  

    U.S. and Canada Record Collection. FHL.

  5. 5

    Cowdery, who was no longer a member of the church, was living in Ohio in early 1839. (Anderson, Investigating the Book of Mormon Witnesses, 39.)  

    Anderson, Richard Lloyd. Investigating the Book of Mormon Witnesses. Salt Lake City: Deseret Book, 1981.

  6. 6

    An Act for the Speedy Recovery of Debts Due on Bonds and Notes [14 Mar. 1835], Revised Statutes of the State of Missouri [1834–1835], p. 449, secs. 1–2.  

    The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly, During the Years One Thousand Eight Hundred and Thirty-Four, and One Thousand Eight Hundred and Thirty-Five. Together with the Constitutions of Missouri and of the United States. 3rd ed. St. Louis: Chambers and Knapp, 1841.

  7. 7

    Affidavit, 10 Jan. 1839 [Boosinger v. O. Cowdery et al.].  

  8. 8

    Attachment, 10 Jan. 1839 [Boosinger v. O. Cowdery et al.]; An Act to Provide for the Recovery of Debts by Attachment [20 Mar. 1835], Revised Statutes of the State of Missouri [1834–1835], pp. 76–77, sec. 6; An Act Supplementary to an Act Entitled “An Act to Provide for the Recovery of Debts by Attachment” [6 Feb. 1837], Laws of the State of Missouri [1836–1837], pp. 8–9. Pitkin accordingly levied 180 acres in Caldwell County to which Hyrum Smith apparently had claim, as well as the “dwelling houses,” unidentified lots, and personal property belonging to JS and Hyrum Smith. Not finding property belonging to Cowdery, the court dismissed the writ of attachment against him. (Transcript of Proceedings, 8 Jan. 1842 [Boosinger v. O. Cowdery et al.], pp. 5–6, 8.)  

    The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly, During the Years One Thousand Eight Hundred and Thirty-Four, and One Thousand Eight Hundred and Thirty-Five. Together with the Constitutions of Missouri and of the United States. 3rd ed. St. Louis: Chambers and Knapp, 1841.

    Laws of the State of Missouri, Passed at the First Session of the Ninth General Assembly, Begun and Held at the City of Jefferson, on Monday, the Twenty-First Day of November, in the Year of Our Lord One Thousand Eight Hundred and Thirty-Six. 2nd ed. St. Louis: Chambers and Knapp, 1841.

  9. 9

    Declaration, ca. 13 Mar. 1839 [Boosinger v. JS et al.]. They evidently used this action because the note was payable in land and in money according to the terms of the initial contract. Rigdon was living in Illinois in early 1839. (Editorial, Quincy (IL) Whig, 23 Feb. 1839, [1].)  

    Quincy Whig. Quincy, IL. 1838–1856.

  10. 10

    Attachment, 14 Mar. 1839 [Boosinger v. JS et al.]. Skidmore levied ninety-seven acres of land to which Hyrum Smith apparently had claim, as well as miscellaneous items of personal property. (Transcript of Proceedings, 8 Jan. 1842 [Boosinger v. JS et al.], pp. 6–7.)  

  11. 11

    Rees presumably represented the plaintiff. It is unknown who represented the defendants.  

  12. 12

    Docket Entry, Motion, Plea, and Judgment, 10 Nov. 1839 [Boosinger v. JS et al.].  

  13. 13

    Docket Entry, Dismissal and Judgment, 12 Nov. 1839 [Boosinger v. Cowdery et al.].  

  14. 14

    Execution, 19 Nov. 1839 [Boosinger v. JS et al.]; Execution, 19 Nov. 1839 [Boosinger v. O. Cowdery et al.]; Transcript of Proceedings, 8 Jan. 1842 [Boosinger v. JS et al.], p. 11. It is unknown whether Boosinger received any of the money collected in these lawsuits from Brashear. In October 1840, Boosinger revoked Brashear’s power of attorney and his attempts “to recover and Receive all debts and sums of money whatsoever due to me by Joseph Smith Jr Sidney Rigdon Oliver Cowdrey and Hiram Smith.” In early 1842, Boosinger corresponded with JS regarding an arrangement to have $305 of the remaining debt credited toward the tithing donations of Boosinger and five of his associates. JS included the promissory note for $735 in his schedule of debts when he petitioned for bankruptcy in April 1842 as a debt of $500, indicating that the debt had been partially paid. (Ray Co., MO, Deed Records, 1820–1927, vol. D, p. 142[b], 1 Oct. 1840, microfilm 959,270, U.S. and Canada Record Collection, FHL; Letter to George Boosinger, 24 Feb. 1842; Letter from George Boosinger, 9 Apr. 1842, in JSP, D9:347–350; see also Application for Bankruptcy, ca. 14–16 Apr. 1842, in JSP, D9:368.)  

    U.S. and Canada Record Collection. FHL.

    JSP, D9 / Smith, Alex D., Christian K. Heimburger, and Christopher James Blythe, eds. Documents, Volume 9: December 1841–April 1842. Vol. 9 of the Documents series of The Joseph Smith Papers, edited by Matthew C. Godfrey, R. Eric Smith, Matthew J. Grow, and Ronald K. Esplin. Salt Lake City: Church Historian’s Press, 2019.