Holden v. Kirby

| Wis. | Jun 15, 1866

Downer, J.

This is an appeal from an order vacating a judgment in the circuit court in favor of the appellant; and the question is, whether any good reason was shown for setting it aside.

It appears by the affidavit of the defendants’ attorney, that the cause was tried, and judgment rendered, in bis absence: but it was tried when it was reached in its order upon the cal-dar. We think bis affidavit discloses facts’sufficient to excuse him from any negligence ; and if either the answer or bis affidavit shows any defense to the action, the judgment was rightly set aside. The affidavit is only (so far as the affiant attempts to state any defense), that Langworthy bad stated to the affiant, bis attorney, bis defense ; and that, from such statements, the affiant believed the defendants bad a defense, &c. It is not an affidavit of merits, nor does it disclose any defense.

The defendants, for a first defense in the answer, deny that the plaintiff has any interest in the note on which the suit is brought, and that be is the true owner and bolder thereof; but, on the contrary allege that the claim of the plaintiff to be the bolder thereof, is made solely to binder and defraud the creditors of Tucker, the payee. The defendants also allege that they are not indebted to the plaintiff; and for a further defense allege, that since the commencement of the action they have paid Tucker (who was at the time of payment the legal owner and bolder of the note), one hundred dollars in full of the same, and taken bis receipt therefor ; and that there is not due to Tucker or any other person, on said note, any sum whatever; .and that the claim of the plaintiff to be the bolder is fraudulent, made to the injury of the defendants, and to binder and delay the creditors of Tucker; and that the transfer of the note by Tucker to the plaintiff .was without consideration, and for the aforesaid purposes.

The defendants do not deny the transfer of the note to the plaintiff, but admit it, and set up, in avoidance of the transfer, that it was fraudulent as to Tucker’s creditors, and without consideration. This is no defense; for the defendants were not creditors of Tucker, and bad no more light to pay the money called for by the note to him, after notice of its transfer to the plaintiff, than tbej bad to any other person. The law would not permit the fraudulent indorser to recover in a suit against bis fraudulent indorsee; and it certainly will not permit him to obtain through the defendants what he could not get by action. As to the defendants the transfer was good, though fraudulent as to creditors.

The denial that the plaintiff was the owner and holder, was the denial of a conclusion of law; and the allegation that Tucker, at the time of the payment to him of the hundred dollars, was the legal owner and holder, we can regard only as a conclusion the pleader drew from the transfer of the note to the plaintiff being fraudulent as to creditors, and without consideration. At least the allegation does not amount to a defense, so long as the answer does not show that the plaintiff ever transferred the note, or parted with the possession of it, after it was transferred and delivered to him.

By the Court — The order of the circuit court is reversed, and the cause remanded.