Batten v. Smith

• Decision Date: 13 December 1887
• Citation: 35 N.W. 542,70 Wis. 272
• Parties: BATTEN v. SMITH ET AL.
• Court: Wisconsin Supreme Court

70 Wis. 272

35 N.W. 542

BATTEN

v.SMITH ET AL.

Supreme Court of Wisconsin.

December 13, 1887.

Appeal from circuit court, Dane county.

Thomas Batten, plaintiff, garnished R. T. Richards, general assignee of R. S. Smith and George J. Smith, judgment debtors. The action was dismissed, and plaintiff appealed.J. P. Smelker, for appellant.

J. M. Smith, for respondents.

TAYLOR, J.

This is a garnishee action commenced by the appellant against the said R. T. Richards. The garnishment is upon a judgment in favor of the appellant against the said Richard S. Smith and George J. Smith, and the garnishee summons was issued after judgment in favor of Batten against said Smiths, and execution issued upon said judgment against the said Smiths. The Smiths were merchants. They had failed in business, and made a voluntary assignment in favor of their creditors; and the said R. T. Richards was the assignee named in such voluntary assignment. The object of the garnishment proceeding was to subject the property and money in the hands of such assignee to the payment of the judgment in favor of the appellant, Batten. The garnishee denied that he had any property or money in his possession belonging to the said Smiths, or either of them, and he also denied that he was indebted to them, or either of them. The appellant took issue upon this denial, and the case was tried by the court and a jury. At the close of the evidence, the learned circuit judge submitted to the jury the following questions as to their findings in the case: “(1) Had the assignors, or either of them, any property at the time of the assignment not afterwards included in the inventory?” (2) “If, in answer to the foregoing question, you say ‘yes,’ were the omissions, or any of them, intentionally made, or were they made by mistake?” (3) “Did the list of creditors embrace all the creditors of the assignors?” (4) “If you say ‘no’ to the foregoing question, were any of the omissions that you find intentionally made, or were they a mistake?” (5) “What amount in money do you find in the hands of the defendant, received under the assignment?” (6) “What amount do you find due the plaintiff on the judgment upon which the garnishee proceedings are instituted?” The jury answered the first question, “Yes;” the second question, “By mistake;” the third question, “Yes;” the fourth question, “No answer;” the fifth question, “$2,380;” and to the sixth question, “$1,348.” There is no claim but that the answers to the fifth and sixth questions were correct. The appellant moved to set aside the verdict, and for a new trial, assigning various reasons therefor. This motion was denied, and exception duly taken, and afterwards the court ordered judgment dismissing the action, with costs; and judgment was entered accordingly, from which the plaintiff appealed so this court.

Most, if not all, the material questions discussed by the appellant on this appeal, and which he insists were wrongly decided by the trial court, were discussed by the appellant, and decided against him, on a former appeal from the judgment of the circuit court upon a traverse of the affidavit for attachment, which was issued in the original action of the appellant against the said Smiths, and upon which attachment the property in the hands of the present garnishee, as assignee of said Smiths, was attached. The affidavit upon which the attachment was issued, alleged that the defendants the Smiths had assigned, conveyed, disposed of, or concealed, or were about to assign, convey, dispose of, or conceal, their property, or some part thereof, with intent to defraud their creditors, and that the defendants fraudulently contracted one of the debts for which this action is brought, This affidavit was traversed by the defendants, and the issues formed by such traverse were tried; and the circuit court found in favor of the defendants the Smiths, and set aside the attachment. From the order setting aside the attachment, an appeal was taken to this court, and the order was affirmed. See Batten v. Smith, 62 Wis. 92, 22 N. W. Rep. 342. By an examination of the record in that case, it will be found that the same evidence was relied upon by the appellant, Batten, to reverse the order in that case, which is relied upon on this appeal to reverse the judgment appealed from in this case. The assignment which is attacked as fraudulent in law or in fact in that case is the same assignment attacked in this case, and, as stated, upon substantially the same evidence. In that case, it was held by this court that any fraudulent transfer of property by the Smiths before the assignment was made could not affect the validity of such assignment, or render it void as to their creditors; and we see no reason for questioning the reasons of Justice CASSODAY, in the opinion in that case, sustaining that position. See pages 98, 99, of 62 Wis. We think the circuit judge rightly excluded from the consideration of the jury in the case at bar all questions as to what, if any, fraudulent transfers had been made by...