Atwood v. Atwood

• Decision Date: 11 March 1913
• Citation: 86 A. 29,86 Conn. 579
• Court: Connecticut Supreme Court
• Parties: ATWOOD v. ATWOOD et al.

86 A. 29

86 Conn. 579

ATWOOD

v. ATWOOD et al.

Supreme Court of Errors of Connecticut.

March 11, 1913.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Frank. G. Atwood against Mary J. Atwood and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Action to recover upon a note for $10,000, alleged to have been executed and delivered by one of the defendants to the plaintiff, and also to have certain conveyances by such defendant to her codefendant set aside as fraudulent.

The promissory note over the name of the defendant Mary J. Atwood bore date April 4, 1894. Its execution and delivery was denied by the defendants. It was not produced at the trial; the explanation given being that it was returned or attempted to be returned, to the maker in consideration of the deed which was the subject of the litigation in Atwood v. Atwood, 84 Conn. 109, 79 Atl. 59, 37 L. R. A. (N. S.) 591, and that therefore it was not in the possession of the plaintiff. In the former case the charge was that the deed which the present plaintiff claimed to hold from Mrs. Atwood was without consideration and procured by fraud. The denial of that charge involved an investigation into precisely the same set of facts.

Jacob P. Goodhart and George E. Beers, both of New Haven, for appellant.

Charles G. Root, of Waterbury, and Charles W. Evarts, of New Haven, for appellees.

PRENTICE, C. J. This action is primarily one by the payee of a promissory note against the maker. A third party is joined with the note maker as a defendant upon allegations that the latter has transferred all, or practically all, of her property to such third party as a gift and in fraud of the plaintiff's rights. Judgment is asked for the amount due upon the note, and that the transfer of property be set aside, or that so much of the property transferred as might be necessary for the purpose be sold, and the proceeds applied to the payment of the amount due upon the note.

The court has found, among other things, that the plaintiff failed to prove the execution and delivery of the note.

With this fact found, the judgment in favor of the defendants was inevitable, and it cannot be disturbed unless the court committed some error of law related in some way to its conclusion in this particular. It matters not what erroneous action it may have taken in respect to other unrelated features of the case, what mistaken views it may have entertained as to the significance of other matters, or upon what insufficient reasons it may have based its judgment. The result must stand unless error be found which touches in some material way this single essential conclusion of fact.

It is contended that there was such error committed by the court in reaching this conclusion upon the evidence. The issue distinctly raised by the answer, whether or not Mary J. At wood, the alleged note maker, in fact made and delivered it, was one which called for the weighing of conflicting testimony, and involved a determination of the credit to be given to witnesses whose testimony was contradictory. The trial court was the final judge upon these matters, and its decision cannot be disturbed by us unless it appears that, attaching such credibility as it might to the various parts of the contradictory testimony, it could not reasonably have reached that decision. No such situation is presented upon this record, and the conclusion of the court must stand.

The plaintiff further charges that the court erred in finding, as it did, in respect to a large number of other matters, and in failing to find, as requested, in respect to those matters and others, and we are asked to correct the finding in those particulars. It is unnecessary to pursue these assignments of error, since no correction or addition could furnish the foundation for a judgment in the plaintiff's behalf as long as it did not appear that the note was made and delivered.

Complaint is made of the action of the court in respect to the printed record upon appeal in a former action between the same parties and reported in 84 Conn. at page 169. This former action covered the same field of controversy as the present; and one of its issues, resulting from the charge of want of consideration, involved an inquiry into the existence of the note now in suit, whose surrender was claimed to be the consideration for the deed then in controversy, and its only consideration. Plaintiff's counsel in their brief treat this action of the court as an admission of...