Wescott v. Catencamp

• Decision Date: 21 June 1926
• Parties: WESCOTT ET AL. v. CATENCAMP.
• Court: Wisconsin Supreme Court

190 Wis. 520

209 N.W. 691

WESCOTT ET AL.

v.CATENCAMP.

Supreme Court of Wisconsin.

June 21, 1926.

Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.

Action by Eugene M. Wescott against Ida Catencamp, with Margaret M. Wescott as impleaded defendant. Judgment for defendant, and plaintiff and impleaded defendant appeal. Reversed and remanded.

Action to set aside a deed of land in Waupaca county given to the respondent, Ida Catencamp, by her husband on April 18, 1921, and to restrain the respondent from disposing of said land. The complaint alleged that such conveyance was fraudulent, and that it was made to hinder, delay, and defraud creditors of the husband. At the time this deed was given, the husband of Ida Catencamp was indebted to Mary Wescott, who is not a party to this action. On June 29, 1921, Mary Wescott's claim was reduced to judgment. Subsequently the land deeded to Ida Catencamp by her husband on April 18, 1921, was levied upon, and sold upon execution sale to Eugene A. Wescott, one of the appellants.

On April 25, 1921, Ida Catencamp was granted a divorce from her husband. The decree vested in her the title to the land conveyed by the deed of April 18, 1821. On June 3, 1921, Mary Wescott filed a petition in the divorce action asking leave to intervene in the divorce proceeding for the purpose of having the divorce decree of April 25, 1921, set aside so far as it related to the division of property, and for the further purpose of compelling Ida Catencamp to reconvey the land here in question to her husband. The application to intervene was denied, and that order was affirmed by this court in 177 Wis. 625, 627, 189 N. W. 144, 145“upon the ground that we can find no abuse by the trial court of the discretion vested in him upon such an application.”

Upon the trial of this action the record in the application to intervene was offered in evidence. A witness was then called as to the value of the property. Then objection was made to the introduction of any further proof, for the reason that it appeared from the record in the application to intervene in the divorce action that all of the issues in this action had been adjudicated, and that by a previous election of remedies the plaintiff has waived any right to proceed in this action, and that the decree of the court cannot be collaterally attacked in this action. This objection was sustained, and judgment was ordered in favor of Ida Catencamp without permitting appellant to complete his proof or to offer any further testimony.

Brown, Pradt & Genrich, of Wausau (Bagley, Spohn & Ross, of Madison, of counsel), for appellants.

John C. Hart, of Waupaca, and Goggins, Brazeau & Graves, of Wisconsin Rapids, for respondent.

STEVENS, J. (after stating the facts as above).

[1] The court was doubtless led to sustain the objection made to the introduction of further proof by the fact that the order denying the application to intervene contained findings upon some of the issues raised by the pleadings in this action. Such findings were a basis for the exercise of the court's discretion in determining whether the petition to intervene should be granted, but they did not finally determine the merits of the claims of any party to this action or to the divorce action in such manner that such party could review that determination upon appeal from the order denying the right to intervene. Upon appeal from that order, the only question that could be considered was whether the court had abused the discretion vested in it. That order was res adjudicata upon no other question. The parties to this proceeding never have had their day in court upon the...