106 N.W. 122 | N.D. | 1906
The plaintiff brought an action against defendant Caldwell to recover upon a promissory note given by him to the plaintiff. At the time of issuing the summons in the action, the plaintiff also commenced a garnishee action or proceeding against the Citizens’ Bank of Drayton and John R. Plogg, claiming that they had money or property in their hands belonging to the defendant. The plaintiff instituted the garnishee action or proceeding by filing and serving the affidavit prescribed by section 5383, Rev. Codes 1899, and the garnishee answered by serving their affidavits prescribed by section 5389, Rev. Codes 1899, in which they denied having any money in. their hands belonging to the defendant. The plaintiff took issue upon the allegations of this affidavit, pur-, suant to section 5393, Rev. Codes 1899. The sole issue for trial was whether the garnishees had any money or property in their hands on November 30, 1901; that being the day on which the garnishee .summons was served. Before the trial the plaintiff secured a judgment against Caldwell upon the promissory note described in the complaint, and the judgment roll was received in evidence at the trial. The district court made findings of fact and conclusions of law in favor of the garnishees, and judgment was entered dismissing the garnishee action. The plaintiff has appealed from the judgment, and asks a review of the entire case, under section 5630, Rev. Codes 1899.
There is no practical dispute as to the facts on which the judgment is based. The appeal is founded more particularly upon the. conclusions of law which the court made from the facts. The principal facts upon which the garnishee action is based are the fol-. lowing: On and prior to July 6, 1901, the defendant was indebted
The plaintiff’s contentions in reference to this transaction are: (1) That the bill of sale was void as to creditors as a matter of law, for the reason that it constituted a secret trust in favor of the defendant and in favor of other creditors; (2) that the bank had in its possession money belonging to the defendant on the day that ¡the garnishee summons was served. Upon the first contention appellant claims that the bill of sale was absolutely void as a matter of law without regard to the real intent of the parties in the execution thereof. The basis of such contention is the claim that such contracts create a. secret trust in favor of the
It is not seriously contended that the transaction was fraudulent in fact. If it were, the contention would be futile. On a careful review of all the evidence it is amply shown that the trans
There is no room for doubt as to the character of this transaction up to this time. It was a completed sale of the property to the bank in consideration of the release of the claims of these creditors against Caldwell. It is claimed that subsequent events show that Caldwell, still retained an interest in the property. On December 9th Caldwell asked leave of the bank to take the horses to Duluth and use them there during the winter. This request was refused. The bank was desirous of disposing of the horses to get its money and stop the expense of keeping them. Caldwell insisted that they could be sold to better advantage in Duluth, and guaranteed that they would bring more than $2,100 net in Duluth. This was more than had been offered for them at Drayton. The bank and Caldwell reached this agreement: The bank was to employ an agent to take the horses to Duluth for sale, and Caldwell was to go there also, but not as agent, or on request of the bank, or at the bank’s expense. If the horses were sold at Duluth for $2,000, over and above the expense of taking them there, Caldwell was to have all over that sum. They were sold at Duluth for $2,000, and Caldwell got nothing out of them. This was a new contract and had nothing to do with the original sale of November 27th. In effect the bank agreed to sell the horses to Caldwell for $2,000 net. Caldwell made no claim that he had any interest in the horses at that time. This transaction has no weight as evidence that the sale was originally as security. It corroborates the evi
The judgment is affirmed.