Ex parte Bergman

• Decision Date: 01 July 1884
• Citation: 4 P. 209,18 Nev. 331
• Parties: Ex parte BERGMAN.
• Court: Nevada Supreme Court

4 P. 209

18 Nev. 331

Ex parte BERGMAN.

Supreme Court of Nevada

July 1, 1884

At chambers. Application for habeas corpus.

A. C Ellis and J. F. Alexander, for petitioner.

R. H Lindsay and Clarke & King, for respondent.

HAWLEY C.J.

On the eighteenth day of April, 1883, R. W. Russell commenced an action in the district court of Washoe county against petitioner, William Bergman, to recover damages for malpractice as a physician, and on the thirtieth day of July 1883, recovered a judgment against him for the sum of $3,000, with interest and costs. Thereafter the said Russell commenced another action, setting forth the judgment by him obtained, and, as matter entitling him to a judgment against the person of petitioner, upon the ground of fraud, alleged, among other things, that on the fifteenth day of June, 1883, petitioner, for the purpose and with the intent to defeat any recovery, upon execution, of any judgment that Russell might recover in the action first commenced, being the owner of and in possession of real estate of the value of $20,000, situate in Washoe county, sold said property and converted it into cash, realizing therefor the sum of $16,800, and removed said money out of the state of Nevada, and deposited the same in a bank in Sacramento, in the state of California; that petitioner was not and is not possessed of any other property; that after the entry of judgment in the original action, petitioner applied for and obtained a stay of execution to enable him to apply for a new trial; that on the sixteenth of February, 1884, his motion for a new trial was overruled; that a stay of execution was then granted until March 1, 1884; that in the month of December, 1883, petitioner surreptitiously, and without the knowledge of Russell, left this state and went to Sacramento, for the purpose of removing and disposing of the deposit of $16,800, and did, in pursuance of said scheme and design, by draft and bill of exchange, remove and dispose of said money by making a pretended gift of the sum of $16,500, and transferring the same, without any consideration whatever, to his father, in the province of Hanover, in Europe, "with the intent then and there, and at all times, to defraud his creditors, and especially with the intent then and there, and at all times, to defraud this plaintiff out of his said judgment and demand;" that execution had been issued on the judgment obtained by Russell, and returned nulla bona by the sheriff; that he, Russell, did not know, at the time petitioner removed his property from the state of Nevada, that petitioner was removing the same, and had no means of knowing thereof, and did not learn the same until after the rendition of the judgment on the thirtieth of July, 1883.

The trial of the second suit resulted in a judgment on the twenty-second day of May, 1884, in favor of Russell for the sum of $3,324.90, and costs, taxed at $160.05; and, upon the general verdict and special findings of the jury, it was "further considered and adjudged that the defendant, William Bergman, has removed his property, and all his property, from the state of Nevada with intent to defraud his creditors, and with intent to defraud his said creditor R. W. Russell, plaintiff herein; and it is considered and adjudged that said defendant, William Bergman, is guilty of removing his property, and all his property, from the state of Nevada with intent to defraud his creditors, and to defraud plaintiff herein his creditor; and plaintiff is hereby adjudged and awarded execution against the body of said defendant, William Bergman, to be taken in satisfaction of the money judgment hereinbefore awarded and recovered; he, said Bergman, to be arrested, detained, and confined in the common or county jail of said Washoe county, state of Nevada, in satisfaction of this judgment, until such time as he shall pay and discharge said judgment money herein, or be otherwise lawfully discharged therefrom; and plaintiff is hereby awarded execution pursuant to the tenor and effect hereof, as by law in such case made and provided."

Contemporaneously with the filing of the complaint in the second suit, an affidavit was filed on behalf of plaintiff, setting forth the same facts as alleged in the complaint; and thereupon an order was made by the district judge, requiring the sheriff of Washoe county to arrest petitioner, and that he be held to bail in the sum of $4,000. On the twenty-fourth day of March, 1884, petitioner gave the required undertaking in the form prescribed by law, and was released from custody. On the tenth day of June, 1884, more than 10 days after the rendition of judgment, petitioner surrendered his body to the custody of the sheriff of Washoe county, for the purpose, as stated by him, of exonerating his sureties. Three days after this surrender, and while petitioner was still in custody, the attorneys for Russell gave to the sheriff a written notice, as follows:

"In conformity with verbal notifications heretofore given, we now notify you in writing that the plaintiff *** does not now, nor has he at any time subsequent to the third inst., any claim or demand that the defendant's person be taken by you in satisfaction of the judgment rendered in said action. If at any time since that time you have been detaining him, it is at your own risk, and on your own responsibility. So far as you or your bondsmen are concerned, the plaintiff exonerates you wholly from any liability in the premises, and looks to the sureties on the bail-bond to pay said judgment."

Petitioner thereupon notified the sheriff that he had surrendered himself in exoneration of his sureties, and that he held himself in readiness to obey the orders of the sheriff in obedience to the requirements of the judgment, and thereupon he was allowed to go at large. Thereafter, to-wit, on the twentieth of June, a writ of execution was issued in said second suit, which, after reciting the money judgment, and the judgment convicting petitioner of fraud, commanded the sheriff to take the body of petitioner into his custody, and to keep, detain, and imprison him in the common or county jail of Washoe county until the said "moneyed judgment, together with costs and interest, and accruing costs, be wholly paid and satisfied, or he be otherwise legally discharged."

Upon these facts, did the district court exceed its jurisdiction in causing the arrest and detention of petitioner? Is the process issued in this case authorized by any judgment, order, or decree of any court, or is it sanctioned by any provision of law? The proceedings were instituted under the fifth subdivision of section 73 of the act relating to arrest and bail in civil actions, which provides that the defendant in the action may be arrested when he "has removed or disposed of his property, or is about to do so, with intent to defraud his creditors." 1 Comp. Laws, 1135. This statute gives authority for the proceedings in Russell v. Bergman, unless the plaintiff lost his right by failing to proceed in the first action, or from some other cause. If the plaintiff had knowledge of the alleged fraudulent acts of petitioner during the pendency of the first action, prior to the rendition of judgment therein, it may be that he might have alleged the same, and that he should have caused the arrest in that suit; but, inasmuch as the plaintiff had no knowledge of the fraud until after the judgment in that action was rendered, I am of opinion that he had the right to take the steps authorized by statute after he obtained knowledge of the fraud.

The fact that the fraudulent acts were committed prior to the rendition of the judgment in the first suit, did not divest the court of its authority to cause the arrest of the petitioner in the second action. The fraud of petitioner was not merged in the judgment in the first suit. Where the fraud is committed in the making of the contract, or in immediate connection therewith, it would undoubtedly be merged in the judgment on the contract; but it is questionable whether the principle of merger has any application whatever to a case like the one under consideration, where the fraud alleged is independent of the cause of action instituted by the plaintiff. If it does apply, then it was the duty of petitioner to have pleaded the merger in the second suit. Not having done so, he has waived the right of this defense.

In Cable v. Cooper the court said:

"The defendant in the original action was bound to plead his discharge, if he wished to avail himself of his exemption from imprisonment for the same cause, secured to him by the statute. If he had been convicted of perjury in procuring his discharge, he was, notwithstanding his discharge, liable to be again imprisoned, either on the old judgment, or under a new judgment recovered upon the old one, in an action of debt; and if the discharge had been pleaded, the plaintiff might have replied to it such conviction, which would have been conclusive to bar him of his exemption. The privilege from imprisonment, to which Brown was entitled under the statute, certainly might be waived, and the omission to plead the discharge in the proper time was a waiver." 15 Johns. 154.

In this case, however, it affirmatively appears that the fraudulent purpose of petitioner was not fully carried out until after the entry of judgment in the first suit. The removal of the money from Sacramento, California, to Hanover, in Germany, if the act was done, as alleged, in furtherance of the fraudulent design to hinder, delay, and defraud the plaintiff, authorized the arrest of petitioner in the second suit. But it is argued that this act was committed out of this state, and hence it is claimed that the district court had no jurisdiction to imprison petiti...