Rozek v. Redzinski

• Decision Date: 23 February 1894
• Citation: 58 N.W. 262,87 Wis. 525
• Parties: ROZEK v. REDZINSKI ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 525

58 N.W. 262

ROZEK

v.REDZINSKI ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Suit in equity by John Rozek against Martin Redzinski, Katazyna Redzinski, and Nobert Kersten, to set aside fraudulent conveyances in aid of an execution. From a judgment for plaintiff, defendants appeal. Modified.T. R. Hudd, for appellants.

Cady & Huntington, for respondent.

In cases of this character, a judgment creditor has four remedies, viz.: (1) To levy and sell under his execution, and maintain ejectment; (2) to issue execution, and, upon its return unsatisfied, proceed under the statute in creditor's suit; (3) to institute supplemental proceedings under the statute, after the return unsatisfied of the execution; (4) he may issue execution and levy, and then maintain an action in its aid. Gates v. Boomer, 17 Wis. 457;Hyde v. Chapman, 33 Wis. 400;Mason v. Pierron, 23 N. W. 119, 63 Wis. 245;Marston v. Dresen, 45 N. W. 110, 76 Wis. 418;Daskam v. Neff, 47 N. W. 1132, 79 Wis. 161;Cornell v. Radway, 22 Wis. 264;Adsit v. Butler, 87 N. Y. 585; and other cases cited in the opinion.

ORTON, C. J.

This is a suit in equity, in aid of an execution. The facts are, substantially and briefly, as follows: The defendant Martin Redzinski and four others were partners in the ownership and operation of a steam thresher, and while engaged in threshing the grain of the plaintiff, in March, 1891, negligently permitted fire to escape and burn up the property of the plaintiff, of the value of about $1,645.93, for which sum the plaintiff obtained judgment against them, as damages and costs, June 24, 1892. On the 21st day of November, 1892, an execution on said judgment was levied on 40 acres of land, as the property of the said defendant. But after the said burning, on the 20th day of January, 1892, the said defendant Martin and his wife, Katazyna Redzinski, conveyed said 40 acres of land, together with another 40 acres of land, which was the homestead of the said Martin, to one John Gajewski, and the deed was recorded. On the 12th day of February, 1892, the said John Gajewski and his wife conveyed back both of said 40-acre tracts to the said Katazyna, the wife of the said Martin Redzinski. The consideration named in the first deed was $1,500, and that named in the last was $1,600. The said Katazyna thereafter occupied the same homestead 40 as her homestead. The defendants to said judgment have no personal property whatever, and no real estate sufficient to satisfy the same. On June 30, 1892, the said Katazyna mortgaged both of said 40's, to secure the payment of $500, to one Nobert Kersten. The object of the action is to have these conveyances and the mortgage set aside as to the 40 acres not so claimed as a homestead, as being fraudulent and void as to the creditors of the said Martin Redzinski. The court found these facts, and that said conveyances, so far as they related to the 40 acres not a homestead, were fraudulent and void, and that the said judgment is a lien on it, but that the said Kersten mortgage was not tainted with any fraud, and was valid, but that the said mortgagee, Kersten, must cause the said homestead 40 to be first sold for the satisfaction of the said mortgage, and that the other 40 be sold only for the deficiency, if any, after the sale of said homestead. Judgment was entered to this effect, and the defendants have appealed therefrom. The errors assigned will be considered in their order:

1. On demurrer ore tenus, that the action will not lie, and the complaint is insufficient: “The right of a judgment creditor who has obtained a lien upon his debtor's property by the levy of an execution thereon to maintain an equitable action to set aside fraudulent claims of third persons upon such property exists independently of section 3186, Rev. St.” Ahlhauser v. Doud, 74 Wis. 400, 43 N. W. 169;Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, and 52 N. W. 1045;Evans v. Laughton, 69 Wis. 144, 33 N. W. 573;Galloway v. Hamilton, 68 Wis. 653, 32 N. W. 636. See many other cases cited in respondent's brief. That such an action may be maintained has been too often decided by this court to be an open question. All the facts necessary to give the court jurisdiction appear to be alleged in the complaint, and such facts, if proved, would entitle the plaintiff to the relief demanded.

2. The said John Gajewski being dead, his statements concerning the transaction cannot be proved: That is clearly so, and such evidence, in an action at law triable by a jury, would be error. But this is an action in equity, triable by the court, and such an error cannot be assigned. If, however, there was not sufficient evidence of the same facts to sustain the judgment without it, then the judgment should be reversed, as resting on incompetent testimony. This testimony was received under objection, and the learned counsel of the respondent state in their brief that the court declared it to be inadmissible before making its findings of fact. It is to be presumed that the court gave no weight to such incompetent testimony, unless the contrary appears.

3. The court received in evidence, under objection, certain deeds tending to show that some of the other defendants to the judgment had made conveyance of their property after the burning, and in one instance to the said Gajewski. Without in some way connecting these defendants with such a disposition of their property by the other defendants to the judgment, such testimony was clearly incompetent; but it was immaterial and harmless, and could have had no weight with the court in finding the conveyances of the defendants, in this case, fraudulent. But such clearly incompetent evidence ought not to have been received, even incautiously or temporarily.

4. The defendant Martin Redzinski refused to be sworn as a witness on behalf of the plaintiff until his witness fees were paid. The court ruled that, being present in court, he must testify without the payment of his fees. The statute (section 4057, Rev. St.) provides only that “no person shall be obliged to attend as a witness, unless his fees are paid or tendered to him,” etc. This person attended as a witness without the payment or tender of his fees, and therefore waived their payment or tender in advance. He was too late in demanding his fees.

5. The court should have found the issues in favor of the defendants Martin Redzinski and Katazyna, his wife. Their intent to defraud his creditors, and particularly the plaintiff, in the conveyances of the 40 acres other than the homestead 40, appears to have been very clearly proved. The said Martin was the only witness as to the sale. He testified that since the sale he has been living right along on the 80 acres, as a farm, and that he never saw John Gajewski on the place while he owned it, and that he is now working on the place, without wages, for his wife, only she buys his clothes. When he sold the farm, he got the whole $1,500 in money, and left it on the bureau, and when he needed money he took some, and his wife took what was left to buy the place back with. She paid that money and the $500 she got from Kersten in buying the farm back. He sold considerable personal property to his wife, which was on the farm. It appears that Katazyna, his wife, bought the farm back again in ...