Barr v. Church

• Decision Date: 24 May 1892
• Citation: 52 N.W. 591,82 Wis. 382
• Parties: BARR v. CHURCH.
• Court: Wisconsin Supreme Court

82 Wis. 382

52 N.W. 591

BARR

v.CHURCH.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Walworth county; FRANK M. FISH, Judge.

Proceedings by George W. Barr against Cyrus Church, as garnishee of Merlin Church. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

October 5, 1889, the plaintiff commenced an action against Merlin H. Church to recover sundry sums due August 15 and 16, 1888, to sundry persons, including the plaintiff, for milk, butter, and cheese sold and delivered to him at agreed prices, and $100 money loaned, and all of which had been assigned to the plaintiff, except his own, and the same belonged to him, and in the aggregate amounted to $1,373.59, and interest from August 15, 1888, and judgment was entered therein in favor of the plaintiff and against Merlin, November 12, 1889, for $1,629.59, damages and costs. That at the time of commencing that action, October 5, 1889, the plaintiff also garnished Cyrus Church, the father of said Merlin, and in the affidavit of garnishment stated that the whole amount due from Merlin to the plaintiff, over and above all offsets, was $1,169.14, and that the garnishee was indebted to Merlin, and had property, real and personal, in his possession, belonging to him, not exempt. That Cyrus answered thereto under oath, to the effect that he was not indebted to, and had no property belonging to, the said Merlin. The plaintiff took issue on the garnishee's answer, and, a jury having been waived, the cause was tried by the court, and at the close of the trial the court found, in effect, among other things, the recovery of said judgment against Merlin as stated; that the patrons of the factories, including the plaintiff, were accustomed to receive checks from Merlin in payment for their respective dividends during each month; that nearly all of said checks, except those upon which this action is based, were drawn signed with the name of Cyrus Church, and had always been drawn in that way, with his knowledge and consent, and the moneys received from sales of the products of said factories were continually deposited in the banks named to the credit of said Cyrus Church, and so continued until August 18, 1888; that said Cyrus Church furnished the necessary credit for carrying on said business, and also furnished the factory building and premises on said farm, and was generally familiar with the business condition of the enterprise; that August 7, 1888, Merlin sold, transferred, and delivered to his father property at the agreed price as mentioned in the opinion; that August 7, 1888, Merlin was indebted to his father in the sum of $4,000 for moneys which had gone into said factory business, and also was further indebted to him in the sum of $450 for one half the purchase price of 15 cows; that August 7, 1888, Merlin was insolvent and financially embarrassed, and had been for several months prior thereto, to the knowledge of his father, who permitted him to remain, as to the world and the patrons dealing with him, in the same exclusive and notorious open possession of the real and personal property mentioned, until August 18, 1888; that August 10, 1888, Merlin sold the Linn factory to Gillis, as mentioned in the opinion; that Merlin, with the knowledge of his father, remained in the notorious and exclusive possession of all of said real and personal property, as to the whole world, until August 18, 1888, dealing and trafficking with the plaintiff and other patrons as before; that said sale to said Gillis and to his father was held and kept a profound secret until after August 15, 1888; that said property so transferred constituted all the property owned by Merlin, including exemptions; that said real and personal property was so transferred to said Cyrus and received by him with intent to hinder, delay, and defraud the creditors of Merlin in the enforcement and collection of their claims; that nearly one half of said property so received by said Cyrus had, prior to and since the commencement of this garnishee action, been converted into cash; that at the time the garnishee process herein was served upon said Cyrus he was the holder and possessor of all the property so transferred to him, or its equivalent in value, and that the same was of the value of $4,450. The court found, as conclusions of law, in effect, that such transfer of real and personal property to said Cyrus was fraudulent and void as to the creditors of said Merlin, and particularly to the extent of the plaintiff's judgment against him, and was taken by said Cyrus at the value mentioned, with intent to hinder, delay, and defraud the creditors of said Merlin; that said Cyrus, at the commencement of this garnishee action, was the fraudulent holder of said property, to the extent of the plaintiff's claim, and should therefore be held as garnishee; and that he is lawfullybound to pay and satisfy the said judgment against Merlin, and judgment is rendered herein accordingly. From the judgment ordered thereon accordingly the defendant Cyrus Church brings this appeal.

C. B....