Noonan v. Pomeroy

14 Wis. 568 | Wis. | 1861

By the Court,

Gold, J.

This is an appeal from, an order of the circuit court of La Crosse county, dissolving and setting aside a writ of attachment. The affidavit for the writ was made by the appellant Noonan, who stated that he had good reason to believe that the respondents had’assigned, disposed of or concealed, and were about to assign, dispose of or conceal their property, with intent to defraud their creditors. Pomeroy traversed this statement in the affidavit, and the issue thus formed was tried by the court as provided by the statute. The evidence taken upon the trial of this issue is quite voluminous, and it has been properly incorporated in a bill of exceptions, and returned to this court. After a careful examination of this testimony, we have arrived at the conclusion that it fully sustains the affidavit and shows that the writ was properly issued.

The counsel for the respondent suggests .that we cannot review the evidence to see whether it sustains the finding of the court or not, because there was no motion for a new trial. We do not suppose any such motion was necessary in order to enable us to review the facts of the case. The statute does not contemplate a new trial of the traverse by the court, and therefore such a motion would -be quite out of place. It is not at all analogous to the case where a motion is made for a new trial on the ground that the verdict is unsupported by the evidence, and the reason in those cases does not apply. Eor in the latter case there may be a new trial, and it is the duty of the court to grant it when the verdict is contrary to the evidence. Therefore it is manifest that on this appeal we are required to review the evidence, and determine what facts are satisfactorily established by it. If the proofs do not sustain the affidavit, and show that the statements therein are well founded, we must affirm the order. If, on the contrary, they show that a good cause existed at the time the affidavit was made for an attachment, we must reverse it.

The affidavit, following the statute, states two grounds for the attachment: first, that the affiant had good reason to believe that the respondents had assigned, disposed of or concealed their property with intent to defraud their creditors ; and second, that they were about to assign, dispose of or conceal their property with such intent.

It would be a very unprofitable labor to enter upon a general discussion of the evidence in this case, and point out the facts and circumstances which establish satisfactorily to our minds the existence of both the causes for the attachment The main and leading facts and circumstances in the case, which go to show a fraudulent disposition of property, partly designed and partly accomplished, were the efforts used to prevent the foreclosure of the Green Bay bank and Cullaton mortgages; the deception used in regard to the transfer of the former; the alleged purchase and sale of Moore’s interest in the office by Pomeroy in November, and the giving of a chattel mortgage upon the entire property in the office to secure payment of several notes for the consideration money running from two to seventeen months ; the immediate assignment of this mortgage by Moore to his father, living in New Hampshire, to pay an old and exceedingly doubtful debt; the transaction in regard to the note of the appellants falling due December 4th, and what was said to Lathrop by Pomeroy at that time ; the statements of the foreman Messervey to La Due, about running the office under the chattel mortgage which had been assigned — referring undoubtedly to the Moore mortgage; the conversation of Pomeroy with Noonan and Rodolph about the claims of the appellants; the respondent’s inability to meet these claims ; and finally the pretended sale to Lottridge; all of which tend naturally and irresistibly to prove that the grounds stated in the affidavit really existed. All these acts and declarations are inconsistent with straight forward, honest dealings and intentions, and conclusively show that the respondents were endeavoring to place their property beyond the reach of their creditors. They might have thought that it was right to cover up and protect their property in this way, and avoid the payment of debts which it was inconvenient to discharge, but nevertheless such purposes were unlawful.

But without dwelling upon the case longer, we will say that to our minds the proofs are entirely satisfactory that the causes for the attachment existed at the time the affidavit was made.

The order, therefore, of the circuit court, setting aside the writ and dissolving the attachment, is reversed, and the cause remanded for further proceedings.