Frisk v. Reigelman

• Citation: 43 N.W. 1117,75 Wis. 499
• Parties: FRISK ET AL. v. REIGELMAN ET AL.
• Decision Date: 03 December 1889
• Court: United States State Supreme Court of Wisconsin

75 Wis. 499

43 N.W. 1117

FRISK ET AL.

v.REIGELMAN ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Eau Claire county.

The principal action is upon an account for goods sold and delivered by the plaintiffs to the defendant, Bessinger, amounting to $170.25. The summons was issued December 19, 1887, and was afterwards returned by the sheriff not served, the defendant not being found in his county. With the summons a writ of attachment was issued, by virtue of which the sheriff levied upon a stock of merchandise as the property of Bessinger, subject to another attachment issued in an action brought by Streissguth & Drake against Bessinger, and theretofore levied upon the same goods. On the same day Samuel Reigelman was duly summoned as a garnishee. He subsequently answered, denying liability as a garnishee, and the plaintiffs took issue on his answer. On the complaint filed in the action, verified by Mr. Frawley, the attorney for the plaintiffs, and on the affidavit of Mr. Frawley, showing that Bessinger had recently theretofore departed from the state with intent to defraud his creditors, and to avoid the service of a summons upon him, the plaintiffs obtained from a court commissioner an order for the service of the summons by publication. After the time for such publication to be made had fully elapsed, the plaintiffs obtained judgment by default against Bessinger for the amount of their claim. After the entry of such judgment the garnishee action was brought to trial. By a stipulation entered into by the respective attorneys a jury was waived, and the cause was submitted to the court on the testimony taken in the action of Streissguth & Drake, above mentioned, who had also instituted garnishee proceedings against Reigelman. An issue had also been made therein on the answer of the garnishee, which was determined by a jury in favor of those plaintiffs. The court found, in substance, that when the garnishee summons was served Reigelman had in his possession and under his control personal property belonging to Bessinger of the value of at least $1,200, and that sufficient remains in his hands, after deducting from the value thereof the amount of the judgment against him of Streissguth & Drake, to pay the judgment of these plaintiffs against Bessinger. Judgment was thereupon ordered and entered for the plaintiffs against Reigelman for the amount of their judgment against Bessinger. A motion for a new trial was denied. The garnishee, Reigelman, appeals from the judgment.James Wickham, for appellant.

T. F. Frawley, for respondents.

LYON, J., ( after stating the facts as above.)

I. Numerous questions of practice are presented by this appeal, and were argued by counsel. These will be considered hereafter. It is convenient, first, to consider the case on the merits. The gravamen of the garnishee action is that Reigelman, the garnishee, purchased a stock of goods of Bessinger, the principal defendant, with the intent on the part of both of them to hinder, delay, and defraud the creditors of Bessinger. The personal property mentioned in the findings of the court is part and parcel of such stock of goods. As is usual in cases of this character, the testimony on most of the material questions involved is conflicting and irreconcilable. After a careful examination thereof, we are of the opinion that the court might properly have found therefrom the following specific facts: In the year 1887, Bessinger was engaged in mercantile business at Washburn. As late as the 1st of December he had a stock of goods in his store worth between $3,000 and $4,000. Soon thereafter he removed a portion of his stock, of the value of about $1,200, to Hayward, and a portion to Ashland. He sold at Hayward about $300 worth of the goods taken there, and sent the remainder to Eau Claire, directed and consigned to Reigelman. He then went to Eau Claire, and negotiated a sale of the portions of his stock both there and at Ashlandto Reigelman for $1,000. The latter made the purchase without opening the packages containing the goods at Eau Claire, or making any examination of them, and without having seen the goods at Ashland, or any invoice of them, and without making any inquiries, except of Bessinger, as to the quantity and value of the goods. He admitted to one of the witnesses that the goods seized on the attachments were a bankrupt stock which he had purchased at Ashland; that the stock was worth $3,000, and he had purchased it at 20 cents on the dollar of its value. Upon inquiry being made of him, he disclaimed knowledge of the whereabouts of Bessinger, but said he had heard he was in San Francisco. After such purchase. Reigelman furnished Bessinger transportation to St. Paul, and has not seen him since. Reigelman placed the goods in a room adjoining his saloon, and commenced selling them at one-third or less of their actual value. The only testimony of the consideration paid for the goods by Reigelman was given by himself, and is to the effect that he loaned Bessinger $500 in March, 1887, taking no note or other voucher therefor. He gave him the money, or most of it, in currency. In July he sent a note for the amount to Bessinger, to be executed by him, payable in four months, that is, on November 25, 1887, without interest. It is quite apparent that Bessinger was an entire stranger to him before 1886, and his personal intercourse with him after that time was casual and infrequent. He testifies to purchasing large quantities of cigars of Bessinger in 1887, and paying him therefor, except 1,000, which he received as interest on the $500. His testimony as to his dealings with Bessinger is so vague and confused that it is quite insufficient to show any close business or personal relations between them. He further testifies that, when he bought the goods, he surrendered to Bessinger the $500 note, and indorsed to him a certificate of deposit for $500, dated two days before, in payment thereof. The certificate so indorsed was produced in court.

Without going further into detail, it is sufficient to say that the transactions between Reigelman and Bessinger were so unusual--so out of the ordinary course of business--that, taken in connection with his admission that the stock which he purchased was a bankrupt stock, and was so purchased at a ruinous sacrifice, the learned...