Twell v. Twell
| Decision Date | 13 January 1886 |
| Citation | 9 P. 537,6 Mont. 19 |
| Parties | TWELL v. TWELL and others. |
| Court | Montana Supreme Court |
Appeal from Second district, Deer Lodge county.
Sharp & Napton and Knowles & Forbis, for appellants.
Dixon & Whitehill, for respondent.
This is an appeal from a judgment. There was no motion for a new trial. The record contains the evidence, and one of the questions presented by the appellants is that the findings of fact by the court are not warranted by the evidence. There was a motion entered to strike the evidence from the record for the reason that, as there was no motion for a new trial or statement on such motion, the evidence could not be examined on this appeal. This motion is well taken. We have repeatedly held that the evidence could not be reviewed unless brought here on a motion for a new trial. The case of Chumasero v. Viall, 3 Mont. 376 is in every way similar to this one in this respect; and it is not necessary to repeat that decision or to review the authorities upon which that case rests. The theory is that before the testimony can be reviewed here the lower court must have had an opportunity to have reviewed its own findings and decisions, and to have corrected its own errors and this, so far as the testimony is concerned, can only be done on motion for a new trial. Our inquiries, therefore, are limited to questions arising upon the judgment roll, and these are: Did the court err in overruling the demurrer to the complaint? Does the complaint support the judgment? Are the findings of fact and the admissions of the pleadings consistent with the judgment?
It appears by the allegations of the complaint that on the seventeenth day of December, 1883, the respondent (the plaintiff) obtained a decree in her behalf, dissolving the bonds of matrimony between herself and Richard Twell, in which it was ordered, adjudged, and decreed that said Richard Twell pay to respondent, as and for her alimony, the sum of $50 per month, during the period of her natural life, or until the further order of the court; the first payment to be made on the day or the date of the decree, and the subsequent payments on the same date of each month thereafter. It was further ordered and adjudged in said decree that, within 15 days of the date thereof, the said Richard Twell give security for the payment of said alimony by executing to the respondent, and filing in the court, a bond, with two or more sufficient sureties, in the sum of $5,000, conditioned for the payment by the said Richard Twell to the respondent said sum of $50 per month, as in the said decree ordered to be paid. It was further ordered and adjudged that upon the failure of said Twell to give said bond as required, that he be adjudged in contempt of court, and that such proceedings thereupon be had to enforce and secure the payment of said sums allowed as alimony as might be necessary and proper, and according to the practice of the court in such cases. It further appears that said Richard Twell has failed to obey said decree, in that he has not paid said monthly installments for alimony, and has failed to give the security required, but, on the contrary, has departed the territory without making any provision whatever for the payment of said alimony, as provided in said decree, and that his whereabouts are unknown. The complaint then sets forth the amount of alimony due and unpaid at the filing thereof. It is further, in substance, alleged that on the twenty-second day of December, 1883, the said Richard Twell was the owner of certain real estate and personal property, amounting to the sum of $6,200; that on said day, and after the entry of said decree of divorce and alimony, the said Twell, in contemplation of a departure from the territory for the purpose of evading the payment of said alimony, and to avoid the process of the court for the enforcement of said decree, made a pretended sale and assignment of his said property to the appellants (defendants) Joseph Lodge and Samuel Beaumont, by virtue of a certain deed or instrument of conveyance, which is set forth in the complaint; that the property so sold and assigned is of the value of $6,200; that said sale and assignment was fraudulent and void as against the respondent, and was made for the purpose of delaying, hindering, and defrauding her by putting it out of her power to enforce her rights under said decree; that Lodge & Beaumont knew of the said decree, and knew that Twell was disposing of his property to evade the payment of said alimony; that they bought said property to enable Twell to leave the country, and to prevent the decree for alimony from being enforced, and to defraud the respondent of her rights under the decree; and that Twell has no other property within the jurisdiction of the court out of which said decree for alimony can be satisfied, in whole or in part. There was a demurrer to the complaint overruled, and an answer by appellants Lodge & Beaumont, in which several of the allegations of the complaint were specifically denied, and a trial before the court on the issues thus raised, the defendant Richard Twell making default.
Upon the trial the court made the following findings of fact:
"(1) That the property sold by defendant Twell to defendants Lodge & Beaumont was, at the time of said sale, of the value of at least $4,200, and that defendants Lodge & Beaumont have realized from the personal property sold since said sale the sum of about twenty-five hundred dollars, and still have all the real estate and personal property, of the value of at least $6,000, in their hands; (2) that the said sale to said Lodge & Beaumont was made by defendant Twell, with the intention and for the purpose of hindering, delaying, and defrauding plaintiff in the enforcement of the decree mentioned in the complaint, and in the collection of the money therein ordered to be paid by defendant Twell; (3) that, at the time of said sale, defendant Twell and said Lodge & Beaumont were, and for 8 or 10 years before had been, friends, and were fellow-countrymen, all being of English birth; (4) that, at the time of said sale, said Lodge & Beaumont knew of the decree mentioned in the complaint, and of the liability of defendant Twell thereunder; (5) that, at the time of said sale, said Lodge & Beaumont put the valuation of $1,200 upon the real property sold, but made no estimate of the value of the personal property, and did not estimate the notes or county script sold, and did not know how many bonds they were to receive; (6) that, at the time of said sale, said Lodge & Beaumont knew that said defendant Twell could not give the bond required by the decree, and that he was at the time selling, or endeavoring to sell, his other personal property besides that sold to Lodge & Beaumont; (7) that said defendant Twell really left Montana territory within two or three days after the sale to Lodge & Beaumont, and has never since been within said territory, and did not leave, and has not now, in said territory any personal property whatever; (8) that the terms of the sale from said defendant Twell to said Lodge & Beaumont were that they should pay Twell $3,000 for the whole property; that they paid said Twell at the time $1,900 in money and $100 by giving said Twell credit for that amount, which he owed them, and agreed to pay the other $1,000 when able, no definite time for the last payment being agreed upon; (9) that after said Twell had left the country, and about January, 1884, said Lodge & Beaumont paid $500 to Thomas L. Napton on an order from said defendant Twell; (10) that afterwards, and after the commencement of this action, in October, 1884, at the request of defendant Twell, by letter to defendant Lodge, said Lodge went to Bismarck, in Dakota territory, and there met said Twell, and paid him the balance of $500 on said sale; (11) that at the time said Lodge & Beaumont paid said order to said Napton they knew that defendant Twell had absconded and sold his property to defraud plaintiff, and they knew the same facts and had been served with summons in this action before they made payment at Bismarck, Dakota territory; (12) and from all the circumstances and facts in the case, defendants Lodge & Beaumont, as men of ordinary prudence and sagacity, had reasonable cause to believe and know and suspect at the time of said sale to them that said Twell made said sale with intent to hinder, delay, and defraud plaintiff in the enforcement and collection of her decree herein of the money due and to become due therein; (13) that said sale was fraudulent and void, and made with intent to delay, hinder, and defraud plaintiff as aforesaid."
Thereupon the court adjudged said sale and assignment to Lodge & Beaumont fraudulent and void, and ordered that all the property of Richard Twell at the date of the entry of said decree of divorce and alimony, and which was sold to said appellants, be placed in the hands of a receiver, to be by him sold, and the amount of alimony due to be paid, and the balance of the money arising from such sale to be brought into court to await the further order thereof.
According to the findings and the admissions of the pleadings this is about the situation: The respondent obtained a divorce from her husband, who is required to pay to her $50 per month as alimony during the period of her natural life, the payment of which the court required him to secure by executing a certain bond; but instead of complying with the order of the court and in violation and contempt thereof, and for the purpose of cheating and defrauding the wife of her alimony, he secretly sells his property to Lodge & Beaumont, who knew of the decree and order of the court, and helping to defeat the same, and to aid in defrauding the...
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