Daskam v. Neff

• Decision Date: 24 February 1891
• Citation: 47 N.W. 1132,79 Wis. 161
• Parties: DASKAM v. NEFF ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 161

47 N.W. 1132

DASKAM

v.NEFF ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Langlade county.

Benjamin M. Goldberg, for appellants.

Thomas Lynch, for respondent.

COLE, C. J.

This action is in the nature of a creditors' bill, wherein the plaintiff seeks to have set aside certain conveyances, alleged to be fraudulent as against creditors. It is not necessary to give a summary of the matters stated in the complaint. It appears from it that J. C. Lewis and Irvin Gray recovered a judgment in March, 1888, against E. Neff and A. E. Neff, copartners. Only a portion of such judgment has been paid. An execution was issued on the judgment, which the sheriff returned wholly unsatisfied. After the return of the execution, supplementary proceedings were instituted, and in these proceedings the plaintiff herein was appointed receiver of the property and effects of the judgment debtors. The receiver has qualified and brings this action. It is alleged that each and both of the judgment debtors are insolvent; that the partnership has been dissolved, and that there are no assets of such copartnership, nor can any property be found which was owned by the judgment debtors jointly. The indebtedness on which the judgment was rendered was contracted between February, 1884, and June, 1886. The receiver is proceeding to collect the judgment out of the individual property of the judgment debtors. The complaint sets out a number of conveyances made by E. Neff to various parties, some to his wife, some to others, who paid no consideration for the property conveyed, and likewise shows transfers of personal property to various persons whose names are unknown, all of which transfers and conveyances are alleged to be fraudulent as to creditors. The usual relief is prayed for. The defendant E. Neff and wife demurred to the complaint on the grounds “(1) that it appears on the face thereof that the court has not jurisdiction of the subject-matter of the action; (2) because it appears on the face of the complaint that the plaintiff has not legal capacity to sue; (3) because the complaint fails to state a cause of action.” The first and third grounds of demurrer may be considered together. The specific objection to the complaint is that it does not appear that the judgment creditors have exhausted their legal remedy for the collection of their judgment, and it is said that this is essential before a court of equity will interfere to reach property held in trust, or which the debtor has fraudulently disposed of. But the complaint does allege, in clear and positive language, that an execution was regularly issued on the judgment, and delivered to the sheriff of the county for service, which the sheriff afterwards returned wholly unsatisfied. Then the supplementary proceeding was instituted. This shows sufficiently that the judgment creditors had pursued their legal remedies to every available extent, without success. Prima facie they have exhausted all legal remedies against the debtors' property, both real and personal. The cases are numerous in this court where the return of an execution by the sheriff with the indorsement thereon that it was wholly unsatisfied was deemed sufficient evidence...