Stirling v. Wagner

• Decision Date: 15 December 1892
• Citation: 31 P. 1032,4 Wyo. 5
• Parties: STIRLING v. WAGNER
• Court: Wyoming Supreme Court

31 P. 1032

4 Wyo. 5

STIRLING v. WAGNER

Supreme Court of Wyoming

December 15, 1892

Rehearing Denied May 13, 1893, Reported at: 4 Wyo. 5 at 46.

Commenced in District Court, Dec. 31, 1888.

ERROR to the District Court of Sweetwater County, HON. SAMUEL T CORN, Judge.

Replevin for a stock of merchandise held by the sheriff under several writs of attachment sued out by creditors of E. J. Wagner. The plaintiff, Charles Wagner, claimed ownership of the goods under a bill of sale executed September 15, 1888, and possession taken thereunder, and alleged the value of the goods to be $ 17,000. The answer denied that the goods were worth more than $ 9,000, alleged the insolvency of E. J Wagner at the time of the execution of the bill of sale, that the transfer to plaintiff, his brother, was fraudulent and made with intent to cheat and defraud the creditors of E. J from whom most of the stock was alleged to have been purchased. The issuance and levy of the writs of attachments were also set forth in the answer. It was further pleaded by the defendant that E. J. Wagner had obtained credit for the goods which he had added to the stock by false and fraudulent representations respecting his financial condition, and the circumstances of his original purchase of the store located at Laramie in this state, which contained the property in controversy, and of a mercantile business which he also carried on at Ogden, Utah; that plaintiff had personal knowledge of such fraudulent representations and of the insolvency of E. J. at the time of the transfer, and that plaintiff and E. J. Wagner were in collusion in the frauds alleged. Plaintiff filed a reply denying all knowledge of any false representations to creditors on the part of E. J., or that the transfer under which he claimed was made with any fraudulent design, or that he was in collusion with E. J. in any purchase of goods, or that he knew the latter's insolvency. The plaintiff also alleged in his reply and claimed on the trial that the transfer was made to him in good faith and for a valuable consideration. Charles and E J. Wagner had been in partnership conducting the Ogden and Laramie stores, and in February, 1888, E. J. claimed to have bought his brother's interest in the Laramie store. He also bought his copartner's interest in the Ogden store, giving his notes on both purchases for about $ 35,000, each payable on demand. The other material facts are stated in the opinion.

The district court found and so adjudged that the plaintiff was the owner and entitled to the possession of the property at the commencement of the action, and that he had been damaged in the sum of $ 900 by reason of its detention by defendant for which amount together with costs judgment was rendered. Defendant prosecuted error.

Judgment reversed and cause remanded.

T. J. O'Donnell and W. S. Decker, for plaintiff in error.

The undisputed facts and Charles Wagner's own story show that there never was a bona fide sale to Charles by E. J. Wagner. The story of their transactions as related by Charles is improbable as shown by the other evidence, and his failure to produce his books and the testimony of E. J. Wagner. He made no effort to obtain such testimony, or to get his brother's books, and his pretense that he did not know the whereabouts of either his brother or the books is apparently false and tricky. The absence of an inventory, bill of sale, and agreement to protect Charles against the debts of the co-partnership when he purchased the Ogden and Laramie stocks, the giving as the consideration for such purchases notes for large amounts payable on demand, all indicate a fraudulent intent. The note for $ 19,000, given for the interest of Charles in the Laramie store was for an amount largely in excess of the cost and actual value of the property purchased. The stock had been largely increased when it was turned back to Charles in September, 1888. Such facts are all badges of fraud. (Wait on Fraudulent Conv., Chap. 16, Sec. 224 et seq.)

The transfer including all the property of the debtor, was a general assignment, and as it undertook to prefer a particular creditor was fraudulent and void. (Rev. Stat., Sec. 96; White v. Cotzhausen, 129 U.S. 329.) There was no change of possession. Placing McCord, an employee of E. J. Wagner, who was already in possession for him, in charge for Charles, did not constitute such a change of possession as is recognized by the law. (Twyne's case, 3 Coke, 80; 1 Smith's Leading cases, part 1, p. 1; Hamilton v. Russell, 1 Cranch, 309; Wilcox v. Jackson, 7 Colo., 521; Bassinger v. Spangler, 9 Colo., 175; Sweeney v. Coe, 2 Colo., 485; Clow v. Woods, 5 S. & R., 275; Wolf v. Kahn, 62 Miss. 814; Hull v. Sigsworth, 48 Conn. 254; Steelwagon v. Jeffries, 44 Pa. 407; Wright v. McCormick, 67 Mo. 428; Claflin v. Rosenberg, 42 Mo. 439; Bishop v. O'Donnell, 56 Mo. 158; Wait, Chap. XVII.)

The judgment should be set aside because it was rendered while the same court was in session in Carbon County. Regular terms of the district court were fixed for each county composing the district by Chap. 75, Laws 1890. It was not the intention of the legislature that more than one of these courts should be in session at the same time. (Freeman on Judgments, 3d Ed., Sec. 121.) Cooper et al. v. Am. Cent. Ins. Co., 3 Colo., 318; Filley v. Cody, 4 Colo., 109. The objection to such a judgment is jurisdictional. Jurisdiction cannot be conferred by consent. (Molandin v. Colo. Central R. R. Co., 3 Colo., 173; Bates v. Gage, 40 Cal. 183; Gregg v. Cooke, Peck (Tenn.), 82; Hermandez v. James, 23 La. Ann., 483.) If the court is held at a time unauthorized by law, all its judgments and proceedings are without warrant of law and void. (Galusha v. Butterfield, 2 Scam., 227; Dunn v. State, 2 Ark. 229; Brumley v. State, 20 Ark. 77; White v. Riggs, 27 Me. 114; Cullum v. Casey, 1 Ala. 351; Weightman v. Kaisuer, 20 Ala. 446; Garlick v. Dunn, 42 Ala. 404.) An order made by a judge residing out of his district at a time when the judge of the district is holding court therein is void. (Freeman, p. 121; People v. O'Neil, 47 Cal. 109.)

To show that a conveyance was made with intent to hinder, delay or defraud creditors, the declarations of the grantor made before and at the time of conveyance are admissible. (Knox v. McFarran, 4 Colo., 596.) Where one derives title from another, the declarations of the grantor in relation to his right, made while holding the title which he transferred, are admissible against the grantee. (Fellows v. Smith, 130 Mass. 378; McCarless v. Reynolds, 67 N.C. 268; Compton v. Fleming, 8 Blackf. (Ind.), 153; Mueller v. Rebhan, 94 Ill. 142; McSweeney v. McMillan, 96 Ind. 298; McFadden v. Ellmaker, 52 Cal. 348; Walker v. Ellidge, 65 Ala. 51; Murrick v. Alvin, 15 Ill.App. 606; Rush v. French, 1 Ariz., 99.) It is necessary to show that E. J. Wagner was a fraudulent grantor; his conduct and intent respecting the estate conveyed, tending to prove a fraudulent intention, are proper evidence. (Bridge v. Eggleston, 14 Mass. 245; Wait, 277.) The rejection of such evidence was error.

Brown & Arnold, for defendant in error.

The bill of exceptions was not properly signed. A judge who tried the case cannot after the expiration of his term of office allow and sign a bill of exceptions. The act is a judicial one and the weight of authority is against the authority of an ex-judge to so allow and sign a bill. (Chap. 38, Laws 1890, Sec. 1; Scribner v. Gay, 5 Mich. 512; Van Valkenburg v. Rogers, 17 Mich. 322; Tefft v. Windsor, id., 425; Crittenden v. Schermerhorn, 35 Mich. 360; Smith v. Baugh, 32 Ind. 163; Ketchum v. Hill, 42 Ind. 64; Ry. Co. v. Rogers, 48 Ind. 427; McKeen v. Boord, 60 Ind. 280; Fellows v. Tait, 14 Wis. 156; Davis v. Menasha, 20 Wis. 205; Hale v. Haselton, 21 Wis. 325; Phelps v. Conant, 30 Vt. 277; Edwards v. Tracey, 2 Mont. 22; U. P. R. R. Co. v. Byrne, 2 Wyo. 111.) Rule 15 of the court with reference to filing briefs has not been complied with by plaintiff in error and for that reason the proceedings should be dismissed. See Rules 21 and 28. The summons in error was not made properly returnable. It was issued in term time and was not made returnable on a day thereof; and further ten copies of the record were not printed and filed as required by law at the time the petition in error was filed.

If the contention of plaintiff in error that the court was without jurisdiction to render judgment is correct, then motion to dismiss should prevail, as appeals or error proceedings can only be taken from valid final judgments. (Freeman on Judg Sec. 121; Wicks v. Sudwig, 9 Cal. 175.) In a motion for a new trial a statement of a ground therefor as follows, "For several errors of law occurring at the trial, and to the commission of each and every of which the defendant at the time excepted," is too general and presents no error for review. (Thompson on Trials, Sec. 2754; Hill v. Wersder, 49 Cal. 148; id., 340; Boburg v. Prahl, 3 Wyo. 325. The court was right in the rejection of evidence. 1 Bigelow on Frauds, p. 170; McElfabrick v. Hicks, 21 Pa. 402; Moses v. Dunham, 71 Ala. 173.) A ruling of court on objection to testimony is not an abuse of discretion preventing a fair trial. (Latimer v. Ryan, 20 Cal. 622; Arrington v. Tupper, 10 Cal. 464; McMin v. Wheelan, 27 Cal. 320.) Appellate court will not vacate a verdict or finding for excessive damages unless it is clear that the jury or court acted under influence of passion or prejudice. (Potter v. Seale, 5 Cal. 411; Taylor v. Ca. Stage Co., 6 Cal. 230; Kinsey v. Wallace, 36 Cal. 463; Myers v. San Francisco, 46 Cal. 215.) "Errors of law" is not included in the expression "contrary to law" or "against law" in the provision of the statute authorizing a new trial when verdict...