Wyatt v. Wyatt

• Decision Date: 31 July 1897
• Citation: 49 P. 855,31 Or. 531
• Parties: WYATT v. WYATT et al.
• Court: Oregon Supreme Court

49 P. 855

31 Or. 531

WYATT v. WYATT et al.

Supreme Court of Oregon

July 31, 1897

Appeal from circuit court, Union county; Robert Eakin, Judge.

Suit by M.F. Wyatt against C.G. Wyatt and another. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit to set aside a conveyance, and to subject the real property therein described to the satisfaction of plaintiff's judgment. It is alleged in the complaint that at all times therein mentioned the defendants, C.G. Wyatt and Sadie M. Wyatt were and are husband and wife; that about November, 1890, C.G. Wyatt became indebted to the plaintiff in the sum of $206.66 on account of money paid him at his request, and for his use and benefit; that he was then the owner of certain real property, particularly describing it "and a large amount of personal property, the description of which is not known to the plaintiff" that on September 28, 1895, plaintiff, having commenced an action in the circuit court of Union county against C.G Wyatt to recover the amount so due, caused a summons to be issued therein and served on the said defendant, who, on October 2d of that year, for the pretended consideration of $1,500, and with intent to defraud plaintiff and his other creditors, conveyed said real property to the said defendant Sadie M. Wyatt, and also sold and transferred to her, for a pretended consideration, all of his personal property not exempt from execution, and that she still holds and claims all of said property; that on November 4, 1895, by consideration of the circuit court, plaintiff obtained a judgment in said action against Wyatt for the sum of $206.66 and his costs and disbursements, taxed at $100, and the same was duly entered in the judgment lien docket of Union county that an execution issued on this judgment was delivered to the sheriff of said county for service, who, on December 4, 1895, returned the same wholly unsatisfied, and recited thereon that after diligent search and inquiry he had been and was unable to find any property belonging to C.G. Wyatt upon which to levy; "that said C.G. Wyatt had, at the time above mentioned, nor has now, any other property than the real and personal property before mentioned and described, and that he is insolvent"; that said conveyance was voluntary, and made and accepted by the parties thereto with the fraudulent intent of placing the property out of the reach of this plaintiff and the other creditors of C.G. Wyatt. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit against either of the defendants having been overruled, an answer was filed which, after denying the material allegations of the complaint, alleged certain facts by way of affirmative defense. A reply having put in issue the allegations of new matter contained in the answer, a trial was had before the court, which, after making findings of fact and law from the evidence taken, gave a decree for plaintiff, from which the defendants appeal, but the evidence so taken was not brought up with the transcript.

T.H. Crawford, for appellants.

N.C. McLeod and J.F. Baker, for respondent.

MOORE C.J. (after stating the facts).

It is contended by counsel for the defendants that, in the absence of the evidence, the case is before us on appeal from the pleadings, findings of fact, and conclusions of law. The statute provides that upon an appeal from a decree given in any court the suit shall be tried anew upon the transcript and evidence accompanying it. Hill's Ann.Laws Or. § 543. In Howe v. Patterson, 5 Or. 353, an appeal from a decree having been taken, and the transcripts filed without the evidence, it was contended by counsel for the appellant that the findings of fact set forth in the decree were conclusive upon the parties to the appeal; but it was held that the proposition insisted upon was untenable, the court saying: "An appeal from a judgment in an action at law as provided for in our Code, is in the nature of a writ of error at common law, because it expressly provides that a judgment can only be reviewed as to questions of law appearing upon the transcript. Thus it will be seen that on appeals in actions at law issues of fact cannot be reviewed by this court. But, as it is provided that on an appeal from a decree in a suit in equity, 'the same shall be tried anew upon the transcript and evidence,' it is obvious that, where testimony was taken in the court below, it must be brought here, so this court may try the cause anew, as well upon the facts as upon the law." It would be impossible to modify the findings of fact without having before us the evidence upon which they are predicated, or to correct conclusions of law not properly deducible therefrom. Yet it is quite clear that the modification of such findings and conclusions must, of necessity, be involved where a trial anew is had upon the "transcript and evidence." It follows that the cause cannot be tried anew in the absence of the evidence, and, this being so, the only question before us for consideration is, does the complaint state facts sufficient to support the decree? Upon...