Weadock v. Kennedy

• Decision Date: 17 November 1891
• Citation: 50 N.W. 393,80 Wis. 449
• Parties: WEADOCK v. KENNEDY.
• Court: Wisconsin Supreme Court

80 Wis. 449

50 N.W. 393

WEADOCK

v.KENNEDY.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action of replevin by Thomas A. B. Weadock, executor of the estate of E. V. Mundy, deceased, against Dan Kennedy. Verdict and judgment for plaintiff. Defendant appeals. Reversed.McIntosh & Bishop and John Brennan, for appellant.

Ross, Dwyer & Smith and Champ Green, for respondent.

ORTON, J.

After the judgment was rendered in this action the plaintiff, E. V. Mundy, died, and the above plaintiff was appointed executor. I shall speak of the said Mundy as plaintiff. On the 22d day of November, 1888, the defendant, as sheriff, levied a writ of attachment issued in the suit of J. McCann as plaintiff, against John McGee as defendant, upon the property described in the complaint in this action, of the value of about $1,800, as the property of said McGee. In said attachment action judgment was afterwards rendered for $4,338.42. The plaintiff brought this action in replevin to obtain the possession of said property, and claimed the ownership thereof by virtue of a bill of sale executed by the said John McGee and wife to him on the 7th day of November, 1888, and of a bill of sale executed by the said John McGee to one Kennedy on the 9th day of the month and year last aforesaid, and assigned to him by the said Kennedy. The consideration expressed in both bills of sale was the sum of $3,000, and each of them conveyed all the property of the said John McGee, except that which was by law exempt. The property attached, and for which this action is brought, is only a part of the property embraced in said bills of sale. The defendant in his answer justified the taking by said writ of attachment, and alleged that when the property was so attached it belonged to the said John McGee, and that prior to the issuing of the attachment the said John McGee had assigned, conveyed, and disposed of part of his property with intent to defraud his creditors. It was apparent from the answer that the defense of the action was to be predicated upon the fraudulent character of the said bills of sale, or other conveyances of the said McGee, so that the court and the counsel of the plaintiff were apprised beforehand of the object of the testimony sought at any time to be introduced by the defendant. The jury rendered a verdict for the plaintiff, and found the value of the property to be $1,891.80. On the merits of the case we may be permitted to say that the testimony tended strongly to show that said McGee was insolvent to the knowledge of the plaintiff when he executed said bills of sale; that they conveyed all of his property; and that they were fraudulent as to his creditors. But we do not feel warranted to reverse the judgment on the ground that the verdict is not sustained by the evidence, for the question of intent to defraud in such a case is one of fact, and peculiarly within the province of the jury to decide, and their verdict ought not to be disturbed unless the evidence very clearly establishes the fraud. There was, however, besides the special exceptions, but in connection with them, one general and glaring error of the court often repeated in the trial, for which the judgment ought to be reversed, and a new trial had in the case. That was the unreasonable limiting, curtailing, and restricting the examination of witnesses while testifying to particular facts and circumstances tending to show the fraud. Fraud, as a question of fact, depends generally upon circumstantial evidence alone, and on a great variety of minor facts, and the court should not be technical or illiberal in sustaining objections to questions having the least bearing upon the issue. If there is any doubt about their materiality, they ought to be answered, rather than rejected as immaterial. If the questions are immaterial, they injure no one. To reject seemingly doubtful questions, in such a case, might sometimes result in great injustice by shutting out important facts. This error in the examination of the witnesses will appear as we dispose of the exceptions to the ruling of the court in sustaining objections to the testimony.

1. The witness Detting had been examined on behalf of the plaintiff in relation to the ownership of the property on the 9th day of November, 1888, and as to what the property consisted of. The plaintiff, on receiving it from McGee, employed the witness to keep and take care of it, and he appeared to know very much about the facts of the sale. He was asked on cross-examination: “Do you know what the value of the property included in the bill of sale was?” This question was objected to by the plaintiff's counsel, on the ground of its being improper, and the objection was sustained. The question was clearly not an improper one in the case, and was material and relevant to the question of fraud. It was not objected to on the ground of not being proper cross-examination. That objection must be taken specially, or will be disregarded. Knapp v. Schneider, 24 Wis. 70.

2. E. V. Mundy, the plaintiff, after being examined as a witness in his own behalf, was asked by the defendant's counsel, on cross-examination, “What went to make up the rest of the three thousand dollars?” The plaintiff's counsel objected to the question as improper, immaterial, and not proper cross-examination, and the objection was sustained. The plaintiff had been examined by his counsel as to the date of his taking possession of the building in which much of the property was situated, and as to his ownership of...