P.J. Bowlin Liquor Co. v. Fauver

• Citation: 117 P. 103,43 Mont. 472
• Parties: P. J. BOWLIN LIQUOR CO. v. FAUVER.
• Decision Date: 22 June 1911
• Court: Montana Supreme Court

117 P. 103

43 Mont. 472

P. J. BOWLIN LIQUOR CO. v. FAUVER.

Supreme Court of Montana

June 22, 1911

Appeal from District Court, Park County; Frank Henry, Judge.

Action by the P.J. Bowlin Liquor Company against George F. Fauver. From an order in proceedings supplemental to execution, the plaintiff appeals. Affirmed.

Frank Arnold, for appellant.

Fred L Gibson, for respondent.

SMITH J.

On September 9, 1910, the plaintiff recovered a judgment against the defendant in Park county for the sum of $239.76 execution was issued and returned unsatisfied, whereupon the plaintiff, through its attorney, moved the district court, on affidavit, for an order requiring the defendant to appear and answer concerning his property. He appeared in response to the order of the court and was examined. The record discloses the fact that several other witnesses were also examined. Mrs. Fauver, the defendant's wife, was sworn, but he objected to her examination on account of the fact that she was his wife. The court sustained the objection, and plaintiff saved an exception to the ruling. The court appears to have been of opinion at the close of the testimony that there was cause to believe that the Fauver Liquor Company was in possession of certain personal property which had been transferred to it by the defendant in fraud of his creditors and that Mrs. Fauver held title to certain lots in the city of Livingston which had been conveyed to her by her husband without consideration. The record discloses that the Fauver Liquor Company is a corporation, the capital stock of which is held by various persons, among whom are some of those who were examined in this proceeding.

At the close of the testimony, the following proceedings took place "Mr. Arnold: Now at this time I ask the court to order that the stock of merchandise and fixtures in the possession of the Fauver Liquor Company be subjected to execution against the defendant, George W. Fauver, on the theory that the property is the property of George W. Fauver. Judge Henry: Mr. Arnold, I cannot try property rights in this summary way. Mr. Arnold: The P.J. Bowlin Liquor Company now moves the court for an order that the personal property in the possession of the Fauver Liquor Company and real property shown to be standing in the name of S.E. Fauver be declared the property of George W. Fauver and subject to execution on the judgment in this case, and that execution issue against said property for the satisfaction of the judgment in this case, together with costs. Judge Henry: Let the record show the motion is denied. (To the overruling of which said motion the plaintiff duly excepted.) Mr. Arnold: Now, then, I ask the court for an order, in view of the overruling of the other motion, for an order granting the P.J. Bowlin Liquor Company permission to commence an action against S.E. Fauver and the Fauver Liquor Company, for the purpose of subjecting the property in their hands, or in the hands of either of them, to execution on judgment in the case at issue. Judge Henry: I will make the order to save...