Smith v. Sherwood

• Decision Date: 07 April 1897
• Citation: 70 N.W. 682,95 Wis. 558
• Parties: SMITH v. SHERWOOD ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 558

70 N.W. 682

SMITH

v.SHERWOOD ET AL.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Pearl H. Smith against Amelia Sherwood and T. W. Wahl. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action for conversion of a sand pump, sand scow, and appurtenances. The defendants justify the taking of the property upon an execution issued upon a judgment in their favor against one A. K. Smith. It appeared in the trial that A. K. Smith and the plaintiff were brothers, and in 1893 were partners, and owned the property in question as partners, and used it in the business of pumping sand out of the bay at Superior. The plaintiff claims that his brother, A. K. Smith, largely overdrew his account, and that in May, 1894, they settled their partnership accounts, and that A. K. Smith then transferred his share in the property in question to the plaintiff, in consideration of the settlement and release by plaintiff of his claim for such overdraft, which amounted, as claimed, to about $1,200. The defendants claimed that the transaction was void as to them, because they were then creditors of A. K. Smith, and that it was fraudulent as to creditors. A verdict for the plaintiff for $1,800 and interest was rendered, and from judgment thereon the defendants appealed.McCausland & Smith and John Brennan, for appellants.

Crownhart, Owen & Foley, for respondent.

WINSLOW, J. (after stating the facts).

The first contention made by the appellants is that the verdict is contrary to the evidence. Examination of the record convinces us that there was sufficient evidence to sustain the verdict; hence this objection must be overruled. There are 46 other errors assigned by the appellants, some of which are again subdivided into lesser and more microscopic errors. He would be an exceptional trial judge who could commit so many errors during the trial of one small case. Many of the errors assigned are of a very trivial nature, and we shall dispose of all but one of them with the general remark that we discover nothing in them which would necessitate a reversal of the judgment. The one error which remains to be discussed, however, is of a serious nature. It appears by affidavits filed in support of the motion for a new trial that the trial judge was absent from the court room, in an adjoining room, for a considerable time during the closing arguments to the jury. Upon one side it is claimed the judge was absent an hour and a half, and upon the other side it is claimed that the absence was only from 20 to 30 minutes. However this may be, it is undisputed that he was absent for a considerable time. Counsel seem to...