Pierstoff v. Jorges

• Decision Date: 17 October 1893
• Citation: 86 Wis. 128,56 N.W. 735
• Parties: PIERSTOFF v. JORGES ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 128

56 N.W. 735

PIERSTOFF

v.JORGES ET AL.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Appeal from circuit court, Iowa county; George Clementson, Judge.

Action by Rosetta A. Pierstoff against Julius M. Jorges and Henry Jorges to set aside certain fraudulent conveyances by defendant Julius M. to defendant Henry. From a judgment in plaintiff's favor, defendants appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that January 6, 1890, the plaintiff recovered a judgment against the defendant Julius M. Jorges, in a bastardy action, in the municipal court of Dane county, in which it was adjudged that said Julius M. pay to the plaintiff $250 forthwith, and certain yearly payments thereafter, and which judgment was thereupon duly docketed by and with the clerk of said court; that, the said Julius M. failing to comply with such judgment, he was thereupon committed to the county jail, where he remained for about 90 days, when he was discharged therefrom on proceedings by and before a circuit court commissioner; that January 14, 1891, an execution, in due form of law, was issued upon said judgment against said Julius M. to the sheriff of said county, to recover the sum of $495.43 then due and remaining unpaid thereon, which said execution was duly returned by the sheriff, wholly unsatisfied, January 14, 1891; that October 5, 1891, a second execution was issued, in due form of law, upon said judgment, against said Julius M., to said sheriff for the sum of $585.43 then due and unpaid thereon, and which execution was also duly returned by said sheriff, October 8. 1891, wholly unsatisfied; that on or about January 2, 1890, the said Julius transferred to his father, the defendant Henry, a stallion, two colts, and a number of accounts, being all the property then owned by said Julius not exempt from seizure and sale on execution; that October 9, 1891, the plaintiff filed this creditor's bill, and served the summons and complaint herein, which complaint alleged, in effect, the facts stated, and that such transfer was made by the said Julius to the said Henry with the intent on the part of both of them to hinder, delay, and defraud the creditors of the said Julius, and particularly this plaintiff, and prayed that such sale be set aside, declared null and void, and that the defendants be adjudged to account for all moneys collected by them, or either of them, upon the accounts and demands mentioned, and for the proceeds of the sale of any of said property, and that the same be paid over to a receiver, and be applied in payment of said judgment. To such complaint the defendants Julius and Henry separately answered, by way of admissions and denials, and set up that the transfers of said property were not fraudulent, but made in good faith, and for a bona fide debt owing by the said Julius to the said Henry. Upon the trial of said issues, the court found, as matters of fact, in effect, the recovery of said judgment in favor of the plaintiff, and against the said Julius, and the issuing of the executions thereon, and the return thereof wholly unsatisfied, as mentioned; that prior to January 2, 1890, the said Julius was the owner and in possession of the personal property mentioned, and on that day executed and delivered a bill of sale of the same to his father, the said Henry; that the property included in said bill of sale, to the knowledge of the said Julius and the said Henry, was all the property of said Julius not exempt from seizure and sale on execution; that at the time of the execution and delivery of said bill of sale the value of said accounts thereby transferred was $105, and the value of the two colts so transferred was $50, and the value of said stallion so transferred was $250; that said Julius made said bill of sale to said Henry with the intent and for the purpose on the part of said Julius of hindering, delaying, and defrauding the plaintiff in this action in the collection of any judgment which she might recover in said bastardy proceedings; that the intent and purpose of said Julius to so hinder, delay, and defraud this plaintiff was at the time known to the said Henry, and participated in by him, and the said Henry took and received the said bill of sale with the intent and for the purpose, on his part, of assisting the said Julius to so hinder, delay, and defraud the said plaintiff in the collection of any judgment which she might recover by said bastardy proceeding; that, since the execution and delivery of said bill of sale, said two colts have been sold, and said accounts collected, to the amount of $155, and the proceeds thereof appropriated by the said Henry, and that said stallion had considerably depreciated in value, and was worth not to exceed $225; that all the material allegations of the complaint were true. And as conclusions of law the court found that said sale of said horses and accounts, January 2, 1890, from said Julius to said Henry, was fraudulent and void as against the plaintiff in this action; that the plaintiff is entitled to judgment against the defendant Henry for the sum of $155, with interest thereon from the date of such findings, and to execution thereon and therefor, forthwith, to be collected out of any property of the said Henry, and also is entitled to judgment against the said Julius for the sum of $225, and to execution thereon and therefor, forthwith, against the said stallion, or any property owned by the said Julius, and is also entitled to judgment against the defendants for the costs and disbursements of this action, to be collected by execution out of any property of the defendants, or either of them; and judgment was ordered thereon accordingly. From the judgment entered thereon accordingly, the defendants bring this appeal.

H. W. Chynoweth, for appellants.

Erdall & Swanson, (John M. Olin, of counsel,) for respondent.

CASSODAY, J., (after stating the facts).

There is no question but what the municipal court had jurisdiction of the bastardy proceeding against the defendant Julius. Section 2515, Rev. St. That court is made by statute a court of record, with a seal. Id. And the general provisions of law which were in force, relative to circuit courts, and the actions and proceedings therein, unless inapplicable, and the rules of practice for circuit courts, are by the statute made applicable to such municipal court; and its rules of practice and proceedings are thereby required to conform, as near as practicable, to the rules and practice of the circuit courts. Section 2516, Rev. St. Upon the trial of such cause, the issue is whether the accused is guilty or not guilty; and, if found guilty, he is thereupon to be adjudged the father of the child, and to stand chargeable with its future maintenance, in such sum and in such manner as the court directs, and also for all expenses incurred by the mother for the lying in and attendance of her during her sickness, and also for the care and support of the child from the time of its birth, and for the costs of the prosecution, as ascertained and fixed by the court, and inserted in the judgment. Section 1535, Id. If such father, upon the rendition of such judgment, fail to give bond as required by the statute, then he must be committed to the county jail until he complies with and performs such judgment, or is otherwise discharged according to law. Section 1536, Id. After such father has been so imprisoned for 90 days, he may, pursuant to the statute, be discharged, according to law. Section 1537, Id. Upon being so discharged from such imprisonment, the court may, on motion of the mother of the child, from time to time, order execution to issue against such father for such sum as may at any time become due thereon, and remain unpaid. Section 1538, Id. Such are some of the provisions of the statutes under which it is claimed that judgment in such bastardy proceeding was rendered against the defendant Julius, and upon which he was so committed to jail and discharged, and thereupon two such executions issued thereon against him, and were, respectively, returned wholly unsatisfied before the commencement of this action.

1. Upon the trial, counsel for the defendant objected to any evidence under the complaint, and he now contends that the complaint is fatally defective, in not alleging a valid judgment in the bastardy proceeding. The statute provides, in effect, that, in pleading a judgment of a court of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment may be stated to have been duly given or made, and that if such allegation be controverted the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. Section 2673, Rev. St. Here the complaint alleges, in effect that on the day named, “in an action for bastardy, in which the above-named plaintiff was the complaining witness, the said Rosetta A Pierstoff recovered a judgment in...