State ex rel. Adams Cnty. State Bank v. Kurth

• Decision Date: 05 December 1939
• Citation: 288 N.W. 810,233 Wis. 60
• Parties: STATE ex rel. ADAMS COUNTY STATE BANK v. KURTH et al.
• Court: Wisconsin Supreme Court

233 Wis. 60

288 N.W. 810

STATE ex rel. ADAMS COUNTY STATE BANK

v.KURTH et al.

Supreme Court of Wisconsin.

Dec. 5, 1939.

Appeal from a peremptory writ of mandamus of the Circuit Court for Adams County; C. F. Van Pelt, judge.

Reversed.

Action commenced upon the relation of Adams County State Bank for a writ of mandamus commanding Willis Kurth, as county clerk of Adams county, to pay to the relator, which had filed a transcript of its judgment against William H. Ward, pursuant to sec. 304.21, Stats., such moneys as were due from Adams county to William H. Ward, doing business as the Ward Oil Company. William H. Ward, W. A. Ward and Adams county were joined as defendants with Willis Kurth. In separate returns the defendants alleged that W. A. Ward was the sole owner of the Ward Oil Company, and the moneys due from Adams county were owing to W. A. Ward and not to William H. Ward. At the opening of a trial defendants' counsel moved to quash the writ on the ground that the relator had a full and adequate remedy at law, but upon the statement of the defendants' counsel that the court could reserve its ruling on the motion, and “should hear the proof and decide it on the merits”, the court heard the proof and rendered a decision on the merits, and made findings of fact and conclusions of law in accordance therewith. In its conclusions of law the court stated “that the plaintiff is entitled to a peremptory writ of mandamus directing the defendant Willis Kurth to pay over to the plaintiff the sum of” $1,050.10 and the costs and disbursements of the action; and “let the peremptory writ of mandamus be issued accordingly.” The record returned on appeal does not disclose the entry of any judgment, but a peremptory writ of mandamus was issued. In the notice of appeal served on behalf of Willis Kurth and W. A. Ward it is stated that they appeal “from the judgment rendered and entered herein.”John Conant, of Westfield, and M. S. King, of Wisconsin Rapids, for appellants.

Thomas, Orr & Isaacson and Joseph G. Werner, all of Madison, for respondent.

FRITZ, Justice.

This action for a writ of mandamus was brought by the relator, Adams County State Bank, to command Willis Kurth, as county clerk of Adams County, to pay to the relator, $1,050 owing by the county to William H. Ward, against whom the relator had taken a judgment, a certified copy of which it had filed under sec. 304.21, Stats., with Kurth as clerk of Adams county. Under that statute a judgment creditor may file a certified copy of his judgment with the county clerk of a county whenever the judgment debtor has money due, or to become due, from the county, and upon such filing it becomes the duty of the proper county officers, after thirty days, to pay to the owner of the judgment all sums due, and becoming due, to the judgment debtor, until the judgment is fully paid. Upon the county clerk's failure to pay the relator's judgment, it brought this action of mandamus and joined William H. Ward, W. A. Ward and Adams county as defendants.

The relator alleged in its petition that the judgment debtor, William H. Ward, had money due from Adams county on sales made to it in the name of Ward Oil Company, which was identical with the person of William H. Ward. In their returns to the alternative writ of mandamus the defendants alleged in effect that W. A. Ward was the sole owner of the Ward Oil Company; that the moneys due from Adams county were owing to W. A. Ward; and that William H. Ward was not entitled thereto. At the commencement of the trial, defendants' counsel moved to quash the peremptory writ on the ground that the plaintiff had an adequate remedy at law, but instead of having the court then rule on their motion to quash, defendants' counsel said, “I don't expect you to sustain the ruling now because I think you should hear the proof and decide it on the merits. You can reserve your ruling on that.” Thereupon the trial proceeded on the merits, and after an apparently full and fair hearing on the merits, during which there does not appear to have been any ruling which the defendants consider erroneous or prejudicial to them, the court found and concluded that certain transfers and assignments from William H. Ward to W. A. Ward of the assets of the business conducted by William H. Ward under the name of Ward Oil Company, and by virtue of which transfers and assignments the defendants claimed that the indebtedness of Adams county was due to W. A. Ward, were fraudulent and void as against the plaintiff, because they were not made in good faith, but were made with intent to hinder, delay and defraud the present and future creditors of William H. Ward, and...