Stanley v. Foote

• Decision Date: 28 February 1901
• Citation: 9 Wyo. 335,63 P. 940
• Parties: STANLEY v. FOOTE, ET AL
• Court: Wyoming Supreme Court

63 P. 940

9 Wyo. 335

STANLEY v. FOOTE, ET AL

Supreme Court of Wyoming

February 28, 1901

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

Robert Foote sued J. M. Stanley and caused an attachment to issue. Certain parties were summoned as garnishees in said action and answered, showing that they were indebted to the defendant. J. S. Stanley filed a petition of intervention claiming that the indebtedness was to him instead of the defendant. The matter was tried, and judgment was rendered against the intervenor. He prosecuted error. The other facts are fully stated in the opinion.

Judgment Modified.

Alvin Bennett and E. E. Enterline for plaintiff in error.

G. E. A. Moeller, for defendant in error.

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

On September 9, 1898, defendant in error, Robert Foote, commenced an action against defendant in error, J. M. Stanley, upon a promissory note, and secured a writ of attachment and order of garnishment upon the ground that "said defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors."

On September 19, 1898, J. M. Stanley, as defendant in the aforesaid action, filed his answer; first, admitting execution and delivery of note sued; second, denying payment as indorsed thereon; third, pleading statute of limitations; and thereafter a reply was filed denying the claim that statute of limitations had run. On September 20, 1898, upon an application made, an order of court was entered allowing J. S. Stanley to become a party to said action for the purpose of having his interest in the property involved therein determined; and he was given until October 15, 1898, to file his petition of intervention. On October 11, 1898, said J. S. Stanley, the plaintiff in error, filed his petition of intervention, alleging ownership of all property attached, and the proceeds thereof, $ 665, held by garnishee (a part not yet due), the same being the proceeds of the sale of said property. On November 15, 1898, the garnishee answered that he was indebted to the defendant, J. M. Stanley, as found by the court on the same day.

On November 15, 1898, upon an examination of garnishee being had, the court, after hearing the evidence presented, finds that the garnishee, J. A. Sonnamaker, is indebted to J. M. Stanley in the sum of six hundred and sixty-five dollars; that of said amount the sum of $ 100 is due, and of the remainder, a part will be due upon the delivery of the S. T. brand; and the remainder in one and two years from August, 1898, and rendered judgment that said garnishee pay the $ 100 found due, to the clerk of the court, subject to the order of the court, and be held for further answer.

On the 16th day of November, 1898, J. M. Stanley, by his testimony, presented to the court his motion to dissolve the attachment, and the record shows that evidence was adduced, and the court being fully advised in the premises, denies said motion, to which ruling defendant, J. M. Stanley, by his counsel, excepted. Then follows in the record this statement:

"This cause coming on further to be heard before the court, without the intervention of a jury, a jury herein having been expressly waived and the court having heard the evidence adduced, the argument of counsel, and being fully advised in the premises, doth find that the defendant, J. M. Stanley, is indebted to the plaintiff, Robert Foote, upon the note sued upon in the sum of $ 199.83, with interest at one and one half per cent per month from December 27, 1890, less a payment of $ 3.75 on June 3, 1896, and also in the further sum of 10 per cent for attorney's fees as provided for in said note.

"It is therefore adjudged, ordered, and decreed that the said plaintiff, Robert Foote, do have and recover judgment of and from the said defendant, J. M. Stanley, the sum of $ 478.21, and the further sum of $ 47.82, as attorney's fees and his costs herein expended, taxed at $ 12.90. To which finding of the court the defendant, by his counsel, now and here excepts."

Subsequently, on the 3d day of May, 1899, Robert Foote, the plaintiff, in the proceedings above set forth, without objection of record, filed his amended answer to the petition of J. S. Stanley, the intervenor, as follows:

"Comes now Robert Foote, plaintiff herein, and for his answer to the petition in intervention of J. S. Stanley, says:

"First Defense: That he denies each and every allegation in said petition of intervention contained.

"Second Defense: And for a second and further defense to the petition of intervention of said J. S. Stanley, plaintiff says:

"First: That at the time of incurring the indebtedness on which this action is based, and for which plaintiff has obtained judgment against the defendant, J. M. Stanley, and for a long time prior thereto, the defendant, J. M. Stanley, was the legal owner of the brand known as S. T. brand, and was also the owner of several hundred head of horses in said brand, all being in Johnson County, Wyoming, and by and with the knowledge, consent, and acquiescence of said J. S. Stanley, who was at all times herein stated a resident of said Johnson County, Wyoming, represented to plaintiff that he was the owner of said property, and held himself out to the public generally as such owner, and by reason of his said ownership and representations of ownership so made by said defendant, the plaintiff sold goods, wares, and merchandise to the said defendant, J. M. Stanley, for which the note on which plaintiff's action is based, was subsequently given, said plaintiff extending said credit on the representations so made by said defendant; that during all of said time up to and including the year 1898, said defendant, J. M. Stanley, by and with the consent, knowledge, and acquiescence of said J. S. Stanley, had possession of all said live stock, and held himself out to the plaintiff and the public generally as the owner thereof, making sales of portion of said live stock in his own name from time to time, and at the time of the commencement of this suit said defendant, J. M. Stanley, for the purpose of defrauding his creditors had just contracted the sale of his entire herd of horses to John Smith and J. A. Sonnamaker, and already delivered 74 head of said horses, and that the money and credits now claimed by said J. S. Stanley represent the proceeds from the sale of said live stock; that all of the said actions of the said defendant, J. M. Stanley, were had and done by and with the consent, connivance, knowledge, and acquiescence of the said J. S. Stanley, and that by reason of the facts aforesaid, said J. S. Stanley is now estopped and precluded from having or claiming any interest in or right to the said described live stock or the proceeds from the sale thereof, as against the plaintiff herein.

"Wherefore plaintiff prays judgment that the petition in intervention of said J. S. Stanley be dismissed, that said J. S. Stanley take nothing, and said plaintiff recover his costs herein."

To which said answer intervenor, J. S. Stanley, on May 10, 1899, filed a general denial. On the same day, May 10, 1899, the cause was heard by the court upon the issues joined, and a decision was reserved until August 15, 1899, when the following judgment and decree was rendered:

"Now on this 15th day of August, A. D. 1899, the said cause having been heretofore submitted to the court upon the petition of intervention of J. S. Stanley and the amended answer of the plaintiff, and the reply of the intervenor to said amended answer, and the evidence in said cause, a jury herein having been expressly waived, and the court being now fully advised in the premises, finds generally in favor of the plaintiff and against the intervenor, J. S. Stanley, and the court finds that the said intervenor, J. S. Stanley, is estopped to claim any interest in and to the money and credits garnished on September 13, 1898, in the hands of J. A. Sonnamaker and John Smith; and finds that the plaintiff is entitled to have the proceeds of said garnishment subjected to the payment of the judgment heretofore rendered in this cause in the November, 1898, term of this court, in favor of Robert Foote plaintiff, and against J. M. Stanley, defendant; and the court further finds that the bill of sale for the property in controversy, executed by J. M. Stanley, to J. S. Stanley, was executed in fraud of the creditors of the said J. M. Stanley, to each and all of which said findings the intervenor, J. S. Stanley, by his counsel, at the time excepted.

"It is therefore considered, ordered, adjudged and decreed by the court, that the intervenor, J. S. Stanley, take nothing by his intervention proceeding, and that the plaintiff, Robert Foote, have the proceeds of the property garnished and attached in this suit to the amount and extent necessary to satisfy his judgment herein obtained against J. M. Stanley, and the costs in this proceeding, taxed at $ .

"It is further ordered and considered by the court, that the garnishee, J. A. Sonnamaker, forthwith execute and deliver to the clerk of this court his two certain promissory notes each dated October 1, 1898, each for the sum of $ 282.50, with interest from date at the rate of eight per cent per annum, one due in one year after date, and one due in two years after date, payable to J. M. Stanley, or bearer, and upon his compliance with this order, the said J. A. Sonnamaker is decreed to be the owner of the S. T. brand, and all horses bearing said brand, wherever they may be found upon the range, being about seventy-four in number; and this judgment shall stand in lieu of a bill of sale from the said J. M. Stanley...