Bragg v. Blewett

• Decision Date: 12 April 1898
• Citation: 74 N.W. 807,99 Wis. 348
• Parties: BRAGG v. BLEWETT ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 348

74 N.W. 807

BRAGG

v.BLEWETT ET AL.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Creditor's action by Edward S. Bragg against Edmund Blewett, impleaded with others. Defendant Edmund Blewett appeals from an order made approving report of a receiver appointed in the action, and discharging him and his bondsmen, and also in the same notice entitled in above action attempts to appeal from an order made in an action by such receiver against Helmer and others, approving report of receiver in that action, and discharging him and his bondsmen. Both appeals dismissed.E. Blewett, in pro. per.

Edward S. Bragg, for respondent.

CASSODAY, C. J.

It appears from the record, and is, in effect, found by the court: That early in 1890 the defendant Edmund Blewett commenced an action against the defendant James Gaynor. That James Gaynor therein claimed that his brother, the defendant Patrick Gaynor, was interested with Edmund Blewett in the cause of action therein, and Patrick Gaynor was thereupon made a co-plaintiff in that action. That March 31, 1890, a judgment for $8,114.50 was recovered against James Gaynor in the circuit court for Winnebago county in that action, which judgment was duly docketed in the clerk's office of that county April 3, 1890. That a transcript thereof was duly docketed in the clerk's office of Fond du Lac county. That July 19, 1890, two several executions were duly issued upon said judgment, one to the sheriff of Fond du Lac county, and the other to the sheriff of Winnebago county. That each of said executions were duly returned nulla bona. That said judgment was taken to this court on appeal, and affirmed. Blewett v. Gaynor, 77 Wis. 378, 46 N. W. 547. That on the same day that that judgment was rendered in the circuit court--March 31, 1890--the defendant Edmund Blewett, for a good and valuable consideration, by an instrument under his hand and seal, did sell, transfer, and assign to the plaintiff, Edward S. Bragg, in trust, the said judgment, with such costs as should be taxed and made a part thereof, for the uses and purposes following, to wit: (1) The payment of the costs and disbursements of that action, with all the attorney fees, costs, and disbursements,together with all counsel fees and charges due and owing for services, etc., rendered in that and in kindred actions of foreclosure by Mrs. Gaynor, of replevin by Pat Gaynor and by himself, Edmund Blewett, against John Weiner; (2) the payment to such persons thereinafter named such sum as he might be owing, which was therein stated opposite their names as nearly as he was then able to state the same, viz.: To Thomas Blewett, $2,500; F. F. Duffy, $160; First National Bank of Fond du Lac, $300, or to the indorsers, in case they paid the same; to Henry Kuicks, $150; Mrs. Murphy, $100; Thomas Weeks, $50; Burns Bros., $50; W. S. Russell, $50; and Hughes and Otis, $175. That, in case the money received should not be sufficient to pay such debts in full, the same should be applied to them ratably, share and share alike. That out of the proceeds, if any there be remaining, to pay his wife the sum of $1,400 in payment for 40 acres of land in Oakfield, belonging to her, and included in a mortgage to Mary Gaynor for his benefit; the balance of such judgment, if any there be, to be paid to himself. That on the same day Edward S. Bragg, by an indorsement thereon, accepted such trust, and agreed to discharge the same to the best of his ability. That this creditor's suit was commenced in December, 1890, against James G. Gaynor, Patrick Gaynor, Edmund Blewett, and others; and the summons and complaint were duly served on the defendant Edmund Blewett, who appeared in the action, but made no answer nor defense, and suffered default. That due service of the summons was made on the other defendants. That at the time of the rendition of said judgment Patrick Gaynor was merely a nominal party thereto, and had no interest therein, nor in the moneys secured thereby, but the same was the sole property of Edmund Blewett, who had good right to convey, satisfy, or assign the same. That Patrick Gaynor had no authority to satisfy said judgment in whole or in part, as he did November 10, 1890. That he received no compensation or consideration for any such discharge or satisfaction, and the same was without authority, and colorable merely, to hinder and delay the collection of said judgment in the interests of James Gaynor, with whom he was in fraudulent collusion. That no partnership ever existed between Edmund Blewett and Patrick Gaynor, as alleged in Patrick Gaynor's answer, nor in any manner whatever. That said judgment was never a partnership asset or partnership property. That Patrick Gaynor has had no interest therein, and no claim, demand, or right to the same, or to any part thereof, or to an account therefor, or for any part thereof. That at the time of the commencement of this action there was justly due to the plaintiff, Edward S. Bragg, for his professional services for and on behalf of Edward Blewett in and about the suits mentioned, $2,500, and to the defendant Thomas W. Spence for like services in such suits, $1,200. And as conclusions of law the court, among other things, found that the assignment by Edmund Blewett, mentioned, passed the title to said judgment and the moneys due thereon, together with the right to bring suit, and take all the necessary remedies required to enforce and collect the same in his own name, to the plaintiff, Edward S. Bragg, as trustee of an express trust, free and clear of all and every claim thereon, except as specified in such assignment: that Patrick Gaynor had no right to satisfy said judgment, or any part thereof, and the same was fraudulent and void, and of no effect or...