Ensign v. Fisher

• Decision Date: 09 February 1897
• Docket Number: 760
• Citation: 47 P. 950,14 Utah 477
• Court: Utah Supreme Court
• Parties: MARTIN ENSIGN, JR., RESPONDENT, v. GEORGE W. FISHER, MARY F. FISHER AND LILLIE BLAND, APPELLANTS

47 P. 950

14 Utah 477

MARTIN ENSIGN, JR., RESPONDENT, v. GEORGE W. FISHER, MARY F. FISHER AND LILLIE BLAND, APPELLANTS

No. 760

Supreme Court of Utah

February 9, 1897

Appeal from the First district court, Box Elder county. Hon. C. H Hart, Judge.

Action by Martin Ensign, Jr., against George W. Fisher et al. to set aside a conveyance alleged to have been made to defraud creditors. From a judgment for plaintiff, defendants appeal.

Reversed.

Moyle Zane & Costigan, for appellant:

A preliminary question arises as to practice on equity appeals under our new constitution. This is an equity case, and the constitution has totally changed the former practice. Heretofore appeals in law cases and in equity cases upon findings were treated alike, as the case of Wells v Wells, 7 Utah 68, and Dooly Block v. Rapid Transit Co., 9 Utah 31, show. But the constitution has provided, art. 8, sec. 10, that the appeal shall be on the record below, and in law cases on questions of fact alone, but in equity cases on both questions of law and fact. This restores our equity practice to the old equity practice which is now in vogue in the United States courts, when the error assigned is that the decree and findings are erroneous, and the whole case comes up on the record just as it did in the trial court, and every question there made, both of law and fact, is open to review. Ridings v. Johnson, 128 U.S. 212, 218; United States v. Old Settlers, 148 U.S. 427; 2 Daniels Chan. Pr. 1459 and note, 1484 and note, 1489 and note (star paging).

Other states have this practice now. Miller v. Cook, 135 Ill. 190; Belleville v. Citizens' Co., 152 Ill. 171; Martin v. Estes, (Mo.) 28 S.W. 65; Likins v. Likins, (Mo.) 27 S.W. 531; Thompson v. Cohen, 24 S.W. 1023.

And this holds true where evidence is orally taken. Benne v. Schecko, 13 S.W. 182; Sayer v. Devore, 13 S.W. 201.

Of course some weight is given to the findings, but the appellate court passes on the evidence without the findings having the binding force that they have under the Code, and the appellate court makes what it considers the proper decree.

B. H. Jones, for respondent.

OPINION

PER CURIAM:

The plaintiff filed his complaint March 30, 1896, and alleged therein that on April 14, 1894, he filed his complaint, and obtained judgment thereon, against the defendant George W Fisher, on February 26, 1896, in the district court for the county of Box Elder, for the sum of $ 150.48, which judgment was then properly docketed; that on March 28, 1896, an execution was issued thereon, and returned unsatisfied; that on April 28, 1894, defendant George W. Fisher and Mary F. Fisher, his wife, made and delivered to their daughter Lillie Bland a deed of conveyance to the land in question. Plaintiff further alleged, on information and belief, that the said deed was so made for the use of the defendant George W. Fisher, without consideration, and with intent to hinder and defraud creditors of their lawful suits and damages, debts, and demands; that, since said deed was executed, the possession of said land had remained under the control and possession of defendant Fisher, under the fraudulent pretense that he was the agent of the grantee; that, at the time the conveyance was made, defendant Fisher was insolvent, and had no property in the state out of which an execution could be collected; and prayed that said conveyance be set aside as fraudulent. The defendant answered, denying the allegations in the complaint, and alleged that the conveyance was made in good faith, for a valuable consideration, without intent to hinder, delay, or defraud any creditor, and that he was not insolvent at the time of signing the conveyance. The plaintiff offered testimony tending to show that in December, 1894, defendant Mary F. Fisher offered to sell the lots in question; that in April, 1895, one witness heard a conversation between Fisher and a gentleman to the effect that Fisher was going to trade the property; that Fisher had said he had sold the property, but the deed was not made out, and witness was to pay rent to the purchaser. It appears that this witness rented the house from Mr. Coombs, the agent of Lillie Bland, and paid him the rent some of the time, and at one time paid the rent to Fisher. Mr. Standing gave testimony tending to show that Mr. Coombs had spoken to him about buying the property in...