Gerwein v. McDonnell
| Decision Date | 27 July 1926 |
| Citation | 209 N.W. 986,54 N.D. 509 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Moellring, J.
Affirmed.
B. H Bradford, for appellant.
"It is now so well settled that the gratuitous contribution of a husband's time and skill to the management of his wife's property creates no title to its profits or increase in him, that the question is no longer debatable." Olson v. O'Connor, 9 N.D. 504 84 N.W. 359. See also Heartz v. Klinkhammer (Minn.) 40 N.W. 826, and Deere, W. & Co. v. Bonne (Iowa) 79 N.W. 59.
F. B. Lambert, for respondent.
"Courts will not allow husband and wife to use this right (right of separate estate) to cloak fraud against creditors, but will ferret out the fraud with very suspicious and acute eyes, so far as human testimony will enable them to do so, failing sometimes, it is true, for want of evidence, but generally succeeding in doing justice in cases of real fraud." Trapnell v. Conklin, 38 Am. St. Rep. 30.
"Where the evidence was such that reasonable persons might draw different conclusions therefrom, a verdict for the plaintiff should not be disturbed." Larson v. Russell (N.D.) 176 N.W. 998.
"Transactions between husband and wife are scrutinized more closely than where no confidential relation exists." Finch v. Styer (N.D.) 199 N.W. 444.
This is an appeal from an order denying a motion for a new trial, or in the alternative, for judgment notwithstanding the verdict. It appears that the plaintiff Gerwein had a judgment against B. McDonnell. In 1923, one Hagen who owned a certain farm entered into a written contract of lease of this farm with M. McDonnell for 1924. M. McDonnell was B. McDonnell's wife. A crop was grown on the Hagen land in 1924. Under the terms of the lease the lessee was entitled to a share of the crop. When the crop was threshed, a portion of it was hauled to the Minot Farmers Elevator Company and a portion to the Minot Farmers Co-operative Grain Association. It was divided there, and the lessee's share stored in the name of M. McDonnell. Gerwein, in aider of an execution on his judgment against B. McDonnell, and claiming that such grain belonged to B. McDonnell, garnisheed both the elevator company and the grain association. The elevator company filed an affidavit denying liability. Gerwein took issue thereon. The cause was tried to a jury and a verdict was returned against Gerwein. The grain association answered setting up that it had certain grain in its possession; that this grain was claimed by M. McDonnell; tendered the grain into court for whomsoever might establish that he was entitled to it, and asked that M. McDonnell be interpleaded. The court so ordered and M. McDonnell answered as such interpleaded defendant. The cause came to trial. The interpleaded defendant, M. McDonnell, after the trial was begun, asked leave to amend her answer. The court granted the application. In her amended answer she set up a plea of res judicata in that the same issues had been determined in the trial of the garnishment proceeding against the elevator company. Plaintiff demurred to this amended answer on the ground that the facts pleaded did not constitute a good plea of res judicata. The demurrer was sustained. The interpleaded defendant then offered proof tending to establish the allegations of the amended answer. On objection this offer was rejected. The trial then proceeded on the issues as made by the original pleadings, plaintiff had a verdict, and judgment was entered thereon. Thereafter, the defendant moved for a new trial or for judgment notwithstanding the verdict, assigning as grounds therefor: First, the insufficiency of the evidence to sustain the verdict and, second, error on the part of the trial court in holding that there was no good plea of res judicata, in sustaining the demurrer to the amended answer, and in other rulings predicated on the theory that the plaintiff was not concluded by the adverse judgment in the garnishment proceeding against the elevator company. The motions were denied. This appeal is from the order denying the same.
On this appeal the interpleaded defendant assigns error on the same grounds that were urged in support of her motion in the court below. As to the first ground urged in support of the appeal, that is, that the evidence was insufficient to sustain the verdict, it appears to us that there was sufficient evidence to be submitted to the jury and to sustain the verdict as returned by the jury. The issue was as to the ownership of certain grain in the hands of the garnishee. The plaintiff contended that this grain was the property of the judgment debtor, B. McDonnell. The interpleaded defendant claimed that it belonged to her. The grain was raised on the farm belonging to Hagen. In 1923, B. McDonnell negotiated with Hagen for the lease of this farm. Hagen prepared a written lease embodying the terms as agreed upon between himself and B. McDonnell, and submitted it for signature. He then for the first time learned that M. McDonnell was to execute as lessee instead of B. McDonnell. The lease was executed by Hagen and M. McDonnell. Under the terms thereof the land was summer fallowed in 1923 and cropped in 1924. All of the work was done under the direction of B. McDonnell. He furnished the machinery and equipment, did the threshing, procured the twine, made arrangements for the hauling of the grain to the elevators, contracted and sold some of it in his own name, and was present at the elevators with Hagen when a division of the same was made according to the terms of the lease. In general he transacted all of the business in connection with the farming operations. Mrs. McDonnell maintained that the lease was entered into by her in good faith and that the grain raised thereunder was hers. She testified that she paid the various items of expense incurred in the farming operations and that she provided the means wherewith the whole operation was carried on. Her testimony was that the funds with which this was done came from the sale of gravel taken from land owned by her and which was sold by B. McDonnell, from rents paid by roomers kept by her, and from her earnings as cook for B. McDonnell's threshing outfit. It appears that B. McDonnell was insolvent. He was engaged in the contracting business and in farming. His property was encumbered and it was impossible to satisfy the plaintiff's judgment out of the same. The plaintiff's contention was that the lease transaction with Hagen was fraudulently entered into in M. McDonnell's name in order to cover up B. McDonnell's property and to hinder and delay his creditors in the collection of their just demands. Without a more particular reference to the evidence we think it enough to say that viewed in the light most favorable to the plaintiff it was sufficient to warrant its submission to the jury on the questions raised and to sustain the verdict as returned. We are reinforced in this opinion by virtue of the fact that the trial court who saw and heard the witnesses was of like mind and refused to disturb the verdict. There was no error in this respect.
It is next urged that the trial court erred in its various rulings touching the question of res judicata. The interpleaded defendant, M. McDonnell, sought to plead and establish the judgment entered in the garnishment action against the Minot Elevator Company as conclusive against the plaintiff on the issues as made in the instant proceeding. Under the statute § 7581, Comp. Laws 1913, it is provided that proceedings against a garnishee...
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