Mace v. Roberts, 97 Wis. 199

Mace v. Roberts

97 Wis. 199 | Wis. | 1897

Pinhey, J.

1. The point made by the appellant, the garnishee, that the respondent was in no position to attack as fraudulent the transfer of property from Cottrell to him, is not well taken. The action brought against Cottrell, and Roberts as garnishee, was a proceeding in aid of the execution. It was a secondary or supplemental action. By sec. 2753, E. S., such an action may be commenced “ upon judgment or decree at any time after issuance in any case of an execution against property, and before the time when it is returnable,” upon an affidavit as prescribed in that section; and “ any number of garnishees may be embraced in the same .affidavit and summons hereinafter provided for; but if a joint liability be claimed against any, it shall be stated in such affidavit, and the garnishees named as jointly liable shall be deemed jointly proceeded against.” And sec. 2754, providing for the garnishee summons, shows that the action is to be entitled as one between the original plaintiff and defendant and the garnishee, and is substantially a continuance of the original action with a view to enforce the decree *204or judgment. The court takes judicial notice of the proceeding and judgment before it in the original action. It-was not necessary, therefore, to formally offer the execution and judgment in evidence on the trial against the garnishee, any more than it would be to put in evidence the defendant’s answer in an ordinary action in order to get the benefit of any admissions it contained. The entire record was doubtless, as is usual, actually before the court and in use by the attorneys on the trial. In any view that may be taken of the matter, the objection is exceedingly technical that it was necessary to offer in evidence the record. , It was, in law and doubtless in fact, before the court. Had any suggestion been made as to the necessity or propriety of offering the record and execution in evidence, they would have doubtless been offered. The objection comes too late. The defendant should have raised it in the court below at. some stage of the trial. It does not appear to have been made at the trial in any form. It cannot be taken for the first time in this court on appeal. No allusion is made to it in the bill of exceptions, and the finding of the court, in this state of the record, as to the fact of the judgment and execution, cannot be overturned on a mere suggestion made for the first time on appeal. It would be trifling with legal proceedings to now give any effect to the objection.

2. The remaining questions are 'questions of fact, in respect, to which the trial court, who saw the garnishee, who was the only witness examined, and heard him testify, had peculiar advantages for determining the credibility of his testimony which this court cannot possess. The testimony of Cottrell was not produced. The general effect of the evidence tended, to show that, as against the plaintiff, the transfer in question was a dishonest and fraudulent transaction. The garnishee knew that Cottrell was indebted to the plaintiff, and he testified that Cottrell had applied to him to get money to pay him. It is uncertain, from the evidence of the garnishee,. *205whether the property was worth $6,000, $11,000, $16,000, or $20,000; and his evidence as to the "bona fides of his debt against Cottrell, in satisfaction of which he claims he took the property assigned to him, is uncertain and calculated to beget .a want of confidence in his statements. It appears that he got by this transaction .all the property that Cottrell had in the state; and as soon as he concluded his settlement with Cottrell, which he says he had, and got the assignment, the latter left the state, and has not since returned. The •defendánt had the means, it appears, from books and papers in his control, to clear up any doubts that arose in relation to the bona fides of the transaction; and, although called on to produce them, he did not do so, but when the trial occurred he had left them, it appears, in his office at Wittenberg, some twenty miles distant. In view of the facts and circumstances as they appear from the record, we do not feel justified in reversing the finding of the trial court, and accordingly affirm the judgment appealed from.

By the Qowrt.— The judgment of the superior court of Milwaukee county is affirmed.