Bloodgood v. Meissner

84 Wis. 452 | Wis. | 1893

Winslow, J.

We are clear that this judgment must be reversed.

I. The money received from Mrs. Meissnerr’s brother for board must be held to be the money of the husband, it appearing that the husband paid for the provisions and defrayed all household expenses. Hamill v. Henry, 69 Iowa, 752; Barnes v. Moore’s Estate, 86 Mich. 585. Under the circumstances here present, such board moneys cannot be held to be the individual earnings of the wife, so as to become her separate property under the provisions of seo. 2343, R. S. Being the property of the husband, she could not, as against his creditors, acquire title to them by gift from her husband, unless, indeed, they were exempt moneys, and this question we shall presently consider.

II. As to the $25 payments made directly by the husband to his wife, the question is somewhat different. It is claimed that these sums were paid her to apply on the judgment confessed by her husband in her favor in August, 1890. If this judgment was an honest judgment for money or property advanced out of the wife’s Separate property to her husband, it would be competent for the husband in good faith to make payments thereon, and such payments would be valid as against creditors. If, however, the judgment was a fraudulent device for the purpose of covering the husband’s property into the wife’s hands, in fraud of creditors, it would furnish no consideration as against such creditors for the paj^ments which the husband here made to the wife. The appellant attempted to show that the judgment was based on no consideration, and was fraudulent as to creditors; but an objection to such proof was sustained, on the ground that the judgment could not be collaterally attacked. This was error. Sec. 2320, R. S., provides, inter alia, that every judgment suffered with intent to hinder, delay, or defraud creditors shall be void as against the person so hindered, delayed, or defrauded. The attack of a creditor upon a fraudulent judgment suffered by his debtor must generally be in another and separate action, unléss he have a specific lien upon a fund in court, when he may intervene and contest the right to the fund, as was done by Geilfuss and Gore in the action of Meissner v. Geilfuss, reported in 65 Wis. 377.

As garnishment under our statutes may perform the office of a creditors’ bill, it is quite evident that a fraudulent judgment may be attacked by it. La Crosse Nat. Bank v. Wilson, 74 Wis. 391. See Bump, Fraud. Conv. (3d ed.), 521. The record of the successful attack made upon the judgment by the interveners, Geilfuss and Gore, was not, however, admissible in favor of the appellant. That was a proceeding between other parties in an action to which appellant was a stranger.

III. It is finally claimed that all the moneys in the wife’s hands are exempt under the provisions of subd. 15, sec. 2982, S. & B. Ann. Stats. This section provides that the earnings of a married person with dependent family, for three months next preceding the issue of garnishment process, to the amount only of $60 for each month, shall be exempt. First, it may be said on this point that there is no evidence in the record showing that the payments made by Max directly to his wife were made out of his earnings. For all that is shown by the record, these amounts may have been paid out of other property owned by Max. But on the theory that these sums came from his earnings, and that the board money may also be properly called “ earnings,” it is argued that they were exempt when given to the wife, and consequently always remain so. If this be good law, a very easy way has been discovered by which a debtor may in a few years accumulate a competence in the hands of his wife, and snap his fingers at importunate creditors. We cannot subscribe to such a view. This exemption is by the very terms of the statute temporary, not permanent. The earnings that are exempted are the earnings for three months next preceding the issuance of the garnishment process. If the earnings still remain in the hands of his employer,the exemption expires at the end of the three months. Seligman v. Heller Brothers' Clothing Co. 69 Wis. 414. We cannot understand the process of reasoning by which this exemption can be extended to three years by reason of the fact that the earnings are in the hands of the wife, instead of the employer.

These views necessitate a new trial.

By the Court.— Judgment reversed, and cause remanded for a new trial.