Beck v. Cole, 16 Wis. 95

Beck v. Cole

16 Wis. 95 | Wis. | 1862

By the Court,

Cole, J.

We cannot perceive any valid objection to tbe affidavit for tire garnishee proceeding. It appears to be full in its allegations or statements, and complies with the statute upon that subject. Neither do we think there was any error in the court directing the issue upon the answer of the garnishee to stand for trial. The statute secures to the plaintiff in attachment, a trial of the issues between him and the garnishee where he is dissatisfied with the answer. It was the right of the respondent to have these issues tried and disposed of in the manner they were in this case.

The court directed the jury to disregard all the testimony which related to the declarations of French in regard to the money due on the receipt of the appellants. We understand that it is admitted on both sides, that this direction was proper, inasmuch as these declarations were made after the assignment of the receipt. We think this fully cured the error of admitting that testimony in the first instance. We are satisfied from the finding of the jury, that the appellants could not have been injured by its admission.

An exception is taken to the general charge of the court, which charge appears to be a correct statement, of the law applicable to the issues made. The court instructed the jury, that if they should find from the evidence that the receipt was transferred by French to Rogers before the garnishee process was served on the defendants, then they were to inquire whether such transfer was bona fide designed to transfer to the latter French’s entire interest in that receipt; and if so, their verdict must be for the garnishees. On the contrary, if they found that the receipt was merely transferred to Rogers to secure an indebtedness due him from French, and that the latter did not intend to part with his entire interest in the claim, but was to have the balance of of the money, after payment

*101of such indebtedness to Rogers, then they were to determine the amount in which French was indebted to Rogers at the time of the transfer, which amount would belong to Rogers out of the money covered by the receipt, and the balance should be applied to the payment of French's debts. The proper instructions were given as to the right of Rogers to hold the claim to secure himself against any liability be had incurred to Bradbury and Pfiffner. There is certainly nothing in any of these instructions of which the appellants can complain. It is, in brief, telling the jury that if they found from the evidence that there were any moneys in their hands belonging to and due French, this sum, whatever it might be, was available for the payment of French's debts. This appears to us to be an exceedingly plain proposition of law.

Again, it is insisted that the court erred in refusing to give the second, fourth and fifth special instructions asked on the part of the appellants.

The second instruction is very obscure, and it is difficult to determine what proposition of law is embraced in it. The more obvious import of the instruction would seem to be, that for the purpose of determining the point whether the garnishees had any property or credits in their hands belonging to French at the time of the service of the garnishee process, the jury could only regard the affidavit of the plaintiff in such garnishee suit, without regarding the answer of the garnishee. This would be erroneous, because the answer of the garnishees might satisfy the jury that they had property in their possession at the time belonging to French, and we can see no objection whatever to the jury considering the answer, as they would any pleading in the case, in passing upon the issue before them. This appears to be the most natural meaning of the instruction, and in this view we deem it erroneous.

By the fourth instruction, the court was requested to charge the jury that a consideration for the assignment of the receipt by French to Rogers was not essential or material; that if it *102was a mere gift to Rogers, be could claim the money due upon it free and clear from French's creditors. If there is anything settled in law, it is the proposition that a debtor cannot give away his property to the in j ury of his creditors. He is required to be just before he is generous. If Rogers paid no consideration whatever for the receipt, then its transfer or as signment to him by French was in law a fraud upon French's creditors. Of this there can be no doubt.

The fifth instruction asked to be given is equally erroneous. The fund specified in the receipt, cannot in any sense of the word, be called “ trust money.” It was no more trust money than any other in the hands of the garnishees, belonging to French. Neither do we think mere rumor of the transfer of this receipt, coming to the knowledge of the garnishees before service of garnishee process, would be sufficient notice to them of such transfer or assignment. The only question was, had the garnishees, at the time of the service of the garnishee process, any property in their hands belonging to French ? And this was the very matter the jury were called upon determine by their verdict.

We cannot see but that the whole subject in controversy was fully and fairly submitted to the jury ; and therefore their verdict is conclusive upon the various questions of fact involved in the case. We believe these remarks dispose of all the matters necessary to be noticed.

The judgment of the county court is affirmed.