Seigel v. Heimovitch

• Decision Date: 05 February 1942
• Citation: 24 A.2d 481,128 Conn. 543
• Court: Connecticut Supreme Court
• Parties: SEIGEL v. HEIMOVITCH et al.

24 A.2d 481

128 Conn. 543

SEIGEL

v. HEIMOVITCH et al.

Supreme Court of Errors of Connecticut.

Feb. 5, 1942.

Appeal from City Court of Hartford; Dunn, Judge.

Action in the nature of scire facias by Charles Seigel against Bessie Heimovitch and others to reach by writ of garnishment funds in the hands of defendants allegedly transferred to them by plaintiff's judgment debtor. From a judgment for defendants, plaintiff appeals.

No error.

Before MALTBIE, C. J, and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Wallace W. Brown, Louis H. Katz, and Charles Welles Gross, all of Hartford, for appellant.

Hugh M. Alcorn, of Hartford, and Aaron J. Palmer, of Middletown, for appellee.

MALTBIE, Chief Justice.

In 1933 the plaintiff brought an action to recover upon a note for $40,000 executed by Edward Heimovitch, seeking relief on the ground that he had made fraudulent conveyances, including transfers of money, to the defendants, among whom were his wife, Bessie Heimovitch, and two of their children. No claim was made at the trial of the action for a judgment against Edward upon the indebtedness evidenced by the note. Judgment was given for the defendants, and, on appeal, it was sustained. Seigel v. Heimovitch, 121 Conn. 207, 183 A. 741. Subsequently the plaintiff brought another action against Edward to recover the debt evidenced by the note, and Bessie and two of their children who were of age and she as guardian of the estate of two of their children who were minors were served as garnishees. Judgment was rendered upon a stipulation that the plaintiff recover the debt of Edward. The present proceeding is a scire facias action brought against the garnishees, based upon certain payments of money claimed to have been made by Edward to them. The trial court gave judgment for them and the plaintiff has appealed. The issue is, were the defendants or any of them indebted to Edward or did they have effects of his in their possession at the time the writ in the action was served on them, on November 20, 1936? General Statutes, § 5763.

In order that the plaintiff should prevail, it would not be sufficient merely to prove that Edward paid money to the defendants but he would also have to establish that the circumstances were such that the payments gave rise to a legal obligation on their part to repay it, either because it constituted an indebtedness to him or because, although in their possession, it continued to be his property. It is true that in Hawes v. Mooney, 39 Conn. 37, we held that property which had been fraudulently conveyed was subject to garnishment, saying (39 Conn. at page 38): "The principle upon which in such cases the creditor may have redress by garnishment, is that the transfer, being fraudulent, is as against a creditor void; and although the title may pass to the fraudulent grantee as between the parties, yet, as against a creditor, the grantee may be treated as mere trustee and bailee of the goods." The defendants in their answer included a defense of res adjudicata based upon the judgment in the original action, but a demurrer to this defense was sustained. The trial court has found that at the trial the plaintiff repeatedly disclaimed that there was any issue of fraud in the case but that in his trial brief he claimed that there had been a scheme or conspiracy on Edward's part to divert his assets to his family, beyond the reach of his creditors. In this situation it was entirely proper for the trial court to discuss in its memorandum of decision a possible claim that the money had been fraudulently transferred. The statement of claims made at the trial contained in the finding rests the plaintiff's right to recover solely upon the contention that by reason of transfers of money by Edward to the defendants they became indebted to him or had effects belonging to him in their possession. But again, in his brief before us, the plaintiff renews the claim made in his trial brief. In order to recover upon the ground that fraudulent conveyances were made by Edward to the defendants, it would be necessary for the plaintiff to prove that payments of money by him to them were made with a fraudulent intent to defeat the claims of his creditors or were without consideration and had the effect of disabling him from discharging his obligations to them. Seigel v. Heimovitch, supra, 121 Conn. 211, 183 A. 741. The trial court has not found that the facts necessary to establish either of these situations existed, nor are we requested to add them to the finding. Any issue as to Edward having made transfers of money to the defendants in fraud of his creditors is not before us. The most the plaintiff could claim would be that he entered upon a plan to protect his money from the vicissitudes of his business by transferring it to the defendants, as evidence that transfers were made with an intent not to vest title to it in them but to preserve his own ownership of it.

The essential issues presented by the appeal are those of fact. The trial court has made a rather extensive finding and the plaintiff seeks numerous corrections and additions to it. Many of the facts he seeks to add could in themselves properly be regarded as admitted or undisputed, but unless qualified by other facts they would give a very incorrect impression. The record presents a series of complicated transactions which counsel for both sides have elucidated in argument and brief with painstaking care and evidently after extensive and zealous study. We have examined the evidence at length in the light of their respective claims but shall not attempt to discuss them in detail except as regards certain of them which concern specific matters.

In 1928 Heimovitch was a wealthy man, the proprietor of a large furniture business in Hartford, having considerable sums of money on deposit in banks and other property. In May, 1930, he incorporated the...