Hinton v. Saul

• Decision Date: 06 September 1927
• Docket Number: 1318
• Citation: 259 P. 185,37 Wyo. 78
• Parties: HINTON v. SAUL, ET AL. [*]
• Court: Wyoming Supreme Court

259 P. 185

37 Wyo. 78

HINTON v. SAUL, ET AL. ^[*]

No. 1318

Supreme Court of Wyoming

September 6, 1927

ERROR to the District Court, Converse County; CYRUS O. BROWN Judge.

Action by W. A. Saul and another against W. S. Hinton and Iona B Hinton to set aside conveyances of property made to Iona B Hinton, wife of W. S. Hinton, and subject that property to the payment of a judgment. From a judgment and decree for plaintiffs, the defendants bring error.

Modified and Affirmed.

Hagens & Murane, for plaintiffs in error.

The court erred in refusing a continuance on account of the absence of a material witness who was ill, 9 Cyc. 105. The cases of Kearney Stone Works v. McPherson, 5 Wyo. 178, Keffer v. State, 12 Wyo. 49, Baldwin v. McDonald, 24 Wyo. 121, Chapman v. Bank, 26 Wyo. 144 are distinguishable upon the facts. J. P. Hinton, the witness in question, had agreed to be present, which was the reason why his deposition had not been taken. The decree exceeded plaintiffs' claim; plaintiffs claimed that the bank stock, cattle and sheep only belonged to W. S. Hinton but the court found the real estate, horses and farm equipment belonged to W. S. Hinton and all of said property was decreed subject to a judgment of plaintiffs. The evidence shows that at the time the wife acquired their property and obligated herself for its payment, her husband was insolvent. She had a right to acquire property free from her husband's debts, and to carry on a business of her own, 4974, 4975 and 4978 Comp. Stats. Arndt v. Harshaw (Wis.) 10 N.W. 390; Hedge v. Glenny (Ia.) 39 N.W. 818; Stratton v. Bailey (Me.) 14 A. 729; Rice v. Allen (Nebr.) 95 N.W. 704; Guthrie v. Hill (Ky.) 127 S.W. 767; Cogar v. Bank, (Ky.) 152 S.W. 278; Koopman v. Mansolf (Mont.) 149 P. 491; Crump v. Walkup (Mo.) 151 S.W. 709. One alleging fraud must prove the fraud he alleges in a clear and satisfactory manner, Kahn v. Ins. Co., 4 Wyo. 419. The law does not allow imputations of fraud when the facts and circumstances out of which it is supposed to arise are consistent with honesty and purity of intention. Patterson v. Lee-Clark-Andreesen Co., 7 Wyo. 401. The trial court based its decision upon language from 27 C. J. 410, to the effect that if the consideration for the transfer to the wife comes from the husband, wholly or in part, the property may be reached by his creditors. The principle applies to a joint purchase by husband and wife as shown by the cases cited in the text, but the principle is not applicable here. Dickinson v. Patton, 65 S.E. 529; New South Bldg. Assn. v. Reed, 31 S.E. 514. The court erred in subjecting all personal property of Mrs. Hinton, except forty head of cattle, to the payment of her husband's debts. Plaintiffs failed to sustain their burden of proof. The decree of the trial court is not sustained by the evidence. The court was without power or jurisdiction to decree the sale of the property belonging to the wife, without reference to the amount of money, if any, contributed by her husband.

M. A. Kline and Maurer & Walker, for defendants in error.

The denial of plaintiffs' motion for continuance was not reversible error. Keffer v. State, 12 Wyo. 49; Chapman v. Bank, 26 Wyo. 144; Campbell v. Blanke, 13 Kan. 62; 13 C. J. 165; Assn. v. Co., 134 P. 443; McNett v. McNett (Cal.) 187 P. 448; Ward v. Atkinson (Colo.) 123 P. 120. The evidence sustains the amended decree, Staley Co. v. Beckstead, 27 Wyo. 173; Worland v. Davis, 31 Wyo. 108; Sewell v. McGovern, 29 Wyo. 62. There was no evidence that Mrs. Hinton had an account in the First National Bank of Douglas, and none of the checks called for were produced, either on the Douglas Bank or Hannibal, Missouri Bank. The liberal provisions of our statutes as to property rights of married women have no application here and the cases cited by plaintiffs in error are inapplicable upon the facts in the case at bar. In this case the wife did nothing, knew nothing about the business and left everything to the control and management of her husband. He received a legacy from his grandmother's estate, some of which was used in the purchase of the bank stock. The general effect of the evidence was that W. S. Hinton owned all of the porperty. An insolvent debtor cannot use his wife's name as a mere device to defeat creditors. Blum v. Ross (Pa.) 10 A. 32; Lachman v. Martin (Ill.) 28 N.E. 795; Wedgewood v. Withers (Nebr.) 53 N.W. 576; Hamill v. Augustine (Ia.) 46 N.W. 1113; Bank v. Marshall (Ky.) 35 S.W. 912; Nickle v. Co. (Ark.) 13 S.W. 78. The error alleged, that the findings did not support the judgment, is not before this court since there was no exception taken to the findings--the only exception taken was a general exception to the judgment, which raises no question as to findings, 3 C. J. 937; Midland Co. v. Dickason (Ind.) 29 N.E. 775; Buckeye Co. v. Fee, 57 N.E. 446; 3 C. J. 933. The trial court, however, found generally for the plaintiffs and against the defendants and also found that the equities of the case are with the plaintiffs. The district court had power to amend its judgment, Chennoweth v. R. R. Co. (Mont.) 148 P. 330; Washington Coal v. Murray (Colo.) 100 P. 588. Defendants had property of the value of at least $ 75,000, from which plaintiffs' judgment should be paid, irrespective of legal questions involved. The judgment of the trial court should be sustained.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

This is an action brought by W. A. Saul and H. C. Saul, as plaintiffs, against W. S. Hinton and Iona B. Hinton, as defendants, to set aside certain conveyances of bank-stock and of cattle and sheep to Iona B. Hinton, wife of W. S. Hinton, and to subject that property to the payment of a judgment which plaintiffs then had against W. S. Hinton, and which was based on an indebtedness that arose prior to the summer of 1921. From a judgment and decree for plaintiffs, the defendants have appealed. The parties will herein be referred to as in the case below.

1. The cause came regularly on for trial in the District Court on February 23, 1925. On that day, but before the trial was commenced, the defendants filed a motion for continuance of the case, alleging that J. P. Hinton, father of W. S. Hinton, was a material witness; that he had been expected to be present at the trial, but that, according to a telegram received from a physician on February 20, 1925, he was sick and unable to travel. The trial court overruled the motion for continuance, and this ruling is assigned as error herein. The action was commenced on March 29, 1924; the answer was filed May 3, 1924, and the reply thereto on May 12, 1924. On November 8, 1924, the case was continued to January 5, 1925, and by a later order the case was again continued to February 23, 1925. No attempt apparently was made to obtain the deposition of the witness up to the time of the trial. The plaintiffs in the case took depositions of witnesses at Hannibal, Missouri, the residence of J. P. Hinton, in the month of November, 1924, and during that time sought to obtain also the deposition of J. P. Hinton, and caused a subpoena to be served on him to appear and give his testimony, but the subpoena was ignored by the witness and he left Hannibal, Missouri, on the date when he was asked to appear. Further, the telegram of the physician stating that the witness was unable to travel was not supported by any affidavit on the part of anyone having knowledge of such sickness. The telegram was sent on February 20, 1925, and it is not unlikely that such affidavit might have reached Douglas before the commencement of the trial. On the whole, we are unable to say that the court abused its discretion in refusing to adjourn the trial of the case, and we think that the assignment of error in reference thereto must be overruled, in accordance with Keffer v. State, 12 Wyo. 49, 73 P. 556; Chapman v. Bank, 26 Wyo. 138, 181 P. 360; Lampitt v. State, 34 Wyo. 247, 271; 242 P. 812.

2. It is assigned as error that the judgment of the trial court is not sustained by sufficient evidence. This will require a review of the testimony in the case, though that must necessarily be brief. We shall mention only what we consider the salient facts, and without particularly discussing some transactions, like the purchase of ranch property and loans in connection therewith, which have only an incidental bearing herein. On many points, the testimony is indefinite and unsatisfactory, making it difficult to arrive at a conclusion. It seems that W. S. Hinton and one Garst were in partnership in the cattle business and that they became insolvent about the month of September, 1921. From that time on W. S. Hinton apparently did most or all of the business transacted by him in the name of his wife, Iona B. Hinton and, as claimed by them, as her agent, receiving a power of attorney from her in the spring of 1922, which authorized him to transact all business for her. At the time that Hinton & Garst became insolvent, Iona B. Hinton had no property of her own, except a few cows and calves given her by the partnership mentioned for services performed for it. It seems to be admitted that most of the property, consisting of cattle and sheep and bank-stock, which was acquired in her name was acquired by means, or as the result, of certain loans which will be mentioned hereafter. After the failure of Hinton & Garst, there was no visible change in the business-actions of W. S. Hinton, except that all, or substantially all, of the property purchased by him was purchased in the name of Iona B. Hinton. We think that the trial court was justified in finding, judging from the testimony which Mrs. Hinton gave in the trial of the case, that she knew very little of the business which was...