75 Wis. 450 | Wis. | 1890
The facts necessary to this decision are substantially as follows: One George P. Goodwin owned a stock of goods and merchandise, and sold the same to the plaintiff, his brother, for the nominal value thereof, and took bis notes therefor, and gave him a bill of sale, and be was in possession under said sale when the defendant, as sheriff, seized the same by virtue of writs of attachment in his hands against the said George P. Goodwin, in favor of certain creditors of his, and afterwards sold the same, after judgment, under executions issued thereon; and this action is for the value of said goods so taken. The defendant justified the taking under said attachments, and the sale under said executions, alleging that said sale by said George P.
On the trial the defendant offered in evidence the full records in the attachment cases in which the goods were taken, including the affidavits of the plaintiffs therein that the said George P. Goodwin, the defendant, had conveyed and disposed of his property with intent to hinder and delay his creditors, and the finding and judgment sustaining said attachments on the trial of the issue on the traverse of said affidavits. These records, on objection of the plaintiff, were received in evidence to prove the fraud on the part of the plaintiff’s vendor. The court not only admitted the records for such purpose, but instructed the jury as follows: “Now, that you may understand the precise issue,the case has already been tried involving the question whether, on the part of George P. Goodwin, this transaction was for the purpose of hindering or dekiying his creditors. That was tried, so far as he was concerned, and decided by the court that it was fraudulent as to him; and that judgment, not having been reversed or appealed from, stands in the case, so far as George is concerned, as a valid judgment, and the transaction was fraudulent and void so far as he was concerned.”
The admission of this evidence, so impressed upon the jury, was clearly erroneous. To impeach this sale for fraud, both the vendor’s fraudulent intent and the vendee’s knowledge of it must be shown. Hopkins v. Langton, 30 Wis. 379. The issue in this case involves both of these propositions, and both must be proved to impeach the sale. Admitting this récord as conclusive proof that the first proposition is true, leaves the other proposition only to be proved. The first cannot be questioned. This took away more than half of the defendant’s burden of proof. It left
It was incumbent upon the plaintiff, and his right, in defense of his property in this suit, to prove that the said George P. Goodwin did not intend to defraud his creditors by this sale to him, but this right is denied him. He can show nothing to impeach that judgment. That question is disposed of and is out of the case; and the plaintiff is bound by an adjudication to which he was not a party. The plaintiff has never had his day in court on that most important question in his case, and his right of trial of it is denied him. To make such record of a former adjudication evidence in a subsequent case, the subject matter must not only be the same, but the parties must be the same. But here the subject matter, even, is not the same. The issue here is the validity of that sale. In the former case it was merely the intent to defraud by the vendor, in order to sustain an attachment. The. questions are materially different. Miller v. McNair, 65 Wis. 454; Oleson v. Merrihew, 45 Wis. 397; Saveland v. Green, 36 Wis. 612; Cecil v. Cecil, 81 Am. Dec. 628; Hill v. Stevenson, 63 Me. 364; Hawes v. Waltham, 18 Pick. 451; Gelpeke v. M.& H. R. Co. 11 Wis. 456.
The question is too familiar to require much authority. The error was material, and affected the rights of the plaintiff in the case, and cannot be disregarded.
By the Qourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.
