Batten v. Richards , 70 Wis. 272 ( 1887 )

Tayloe, J.

Most, if not all, the material questions discussed by the appellant on this appeal, and which he insists were wrongly decided by the trial court, were discussed by the appellant and decided against him on a former appeal from the judgment of the circuit court upon a traverse of the affidavit for an attachment, which was issued in the original action of the appellant against the said Smiths, and upon which attachment the property in the hands of the present garnishee, as assignee of said Smiths, was at-tachecl. The affidavit upon which. the attachment was issued alleged that the defendants the Smiths had assigned, conveyed, disposed of, or concealed, or were about to assign, conve}7, dispose of, or conceal, their property, or some part thereof, with intent to defraud their creditors, and that the defendants fraudulently contracted one of the debts for which this action is- brought. This affidavit was traversed by the defendants, and the issues formed by such traverse were tried; and the circuit court found in favor of the defendants the Smiths, and set aside the attachment. From the order setting aside the attachment, an appeal was taken to this court, and the order was affirmed. See Batten v. Smith, 62 Wis. 92. By an examination of the record in that case, it will be found that the same evidence was relied upon by the appellant, Batten, to reverse the order in that case, which is relied upon on this appeal to reverse the judgment appealed from in this case. The assignment which is attacked as fraudulent in law or in fact in that case is the same assignment attacked in this case, and, as stated, upon substantially the same evidence. In that case, it was held by this court that any fraudulent transfer of property by the Smiths before the assignment was made could not affect the validity of such assignment, or render it void as to their creditors; and we see no reason for questioning the reasons of Justice Cassoday, in tbe opinion in that case, sustaining that position. See 62 Wis. 98, 99. We think the circuit judge rightly excluded from the consideration of the jury in the case at bar all questions as to what, if any, fraudulent transfers had been made by the Smiths previous to the execution of the assignment, and that he properly confined them to matters which went to the validity of the assignment.

The only questions which were raised by the evidence which affected the validity of the assignment itself were those submitted to the jury, viz.: Did the assignors, within the time prescribed by law, file a correct inventorjr of their ■assets, and a correct list of their creditors? and, second, If ■they did not, was tbe incorrectness of the inventory and •list intentional on the part of the assignors, or did it result from mistake ? These questions were also raised in the traverse of the affidavit in the case against the Smiths, and the evidence on that traverse upon these questions was in substance the same as in the present case. The issues were found against the appellant in that case, as they Avere in the present case. In the opinion of the court on the former ■appeal it is said: “Without going into details, it is enough to say that Ave find no evidence of intentional omission of •any property from the inventory, nor any evidence that in making the assignment the defendants intended to defraud any of their creditors.” We do not cite the former case for the reason that we consider the matter in this case as res adjudicata, but simply as an adjudication against the appellant upon the issues raised in this case, supported by substantially the same evidence as in the former case. It seems to us that, unless we are prepared to say that we were Avrong in the former case, we cannot disturb the verdict of the jury upon the issues decided by them in the case at bar.

If the omissions in the inventory of assets or in the list of creditors were omissions caused by mistakes of law or fact, then the assignment Avas not aAroided by such omissions. See Farwell v. Gundry, 52 Wis. 268; Smith v. Bowen, 61 Wis. 258; Mather v. McMillan, 60 Wis. 546; Steinlein v. Halstead, 52 Wis. 291; and Batten v. Smith, sicpra. The material questions of fact on the trial of this case were submitted to the jury, and they have found in favor of the respondent. After a careful consideration of the evidence, Ave think their verdict is not so clearly against the evidence in the case as Avould justify us in reversing the order of the circuit judge in refusing to grant a new trial upon these questions of fact.

It is insisted by the learned counsel for the appellant that the circuit judge erred in his instructions to the jury. "We do not deem it necessary to consider in detail the twenty-two separate exceptions to such instructions. After a careful reading of the instructions we can find nothing which seems to us to be erroneous, in view of the fact that the only questions which were submitted to the jury for their decision were the ones above stated. There certainly is nothing in the instructions which could have misled the jury in determining the questions submitted to them. The learned counsel for the appellant insist that the learned judge erred in stating the law as to the burden of proof. We think otherwise. The learned judge stated that when the inventory and list were made and filed in time, properly certified, the presumption was that they were correct, and the burden of proof showing their incorrectness was on the party alleging such incorrectness. This is certainly correct. He also stated that when the attacking party shows that they are not correct, and that assets are omitted from the inventory, then the burden of proof is on the party seeking to sustain the assignment to show that such omissions were made by mistake and were not intentional. This is also clearly correct. These instructions gave the jury the correct rules of law for the determination of the questions submitted to them. . The court did not err in refusing to give the general instructions requested by the appellant upon this point. The other instructions requested and refuged were properly refused because the jury were not asked to find whether, upon the whole evidence, the assignment was void. If it be insisted that there was the general question in the case, whether, upon the whole evidence, the assignment was not shown to have been void because made with an intention to defraud the creditors of the assignors, that question was not submitted to the jury, nor did the appellant ask to have it submitted to them, and wc must conclude that the court decided that question against the appellant.

This being a garnishee action, the issues in the case, of the nature of those raised by the evidence in this case, were not necessarily triable by a jury, and any material issue which was not submitted to the jury the court had the right to determine. If, therefore, upon all the evidence, there was anything appearing which tended to show that the assignment was fraudulent in fact, notwithstanding that it ivas valid in form, and the inventory of assets and list of creditors were not intentionally incorrect, that issue, we must conclude, was found against the appellant bjr the court, in refusing to grant a new trial, and in directing that the action be dismissed.

There is certainly nothing in the evidence which establishes the invalidity of the assignment as a matter of law; and the court and jury having found the issues of fact against the appellant, upon, as we think, sufficient evidence, the learned circuit judge was right in refusing to set aside the verdict and grant a new trial.

By the Court.— The judgment of the circuit court is affirmed.