Pierstoff v. Jorges

Oct 17, 1893
Reporters:
, ,
Before:
Cassoday
Cassoday, J.

There is no question but what the municipal court had jurisdiction of the bastardy proceeding against the defendant Julius. Sec. 2515, R. S. That court is made by statute a court of record, with’ a seal. Ibid. And the general provisions of law which were in force relative to circuit courts and the actions and proceedings therein, unless inapplicable, and the .rules of practice for *134circuit courts, are by the statute made applicable to such municipal court; and it‘s rules of practice and proceedings are thereby required to conform, as near as practicable, to the rules and practice of the circuit courts. Sec. 2516, R. S. Upon the trial of such cause, the issue is whether the accused is guilty or not guilty; and if found guilty he is thereupon to be adjudged the father of the child, and to stand chargeable with its future maintenance in such sum and in such manner as the court directs, and also for all expenses incurred by the mother for the lying in and attendance of her during her sickness, and also for the care and support of the child from the time of its birth, and for the costs of the’ prosecution, as ascertained and fixed by the ‍‌‌‌​​‌​​‌‌​​‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌​‌​‌​​​​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​​‌​​​‌‌​​​‌​​‌‌‌​​‌​‌‌​​‌‌​‌​‌‍court and inserted in. the judgment. Sec. 1535, R. S. If such father, upon the rendition of such judgment, fail to give bond as required by the statute, then he must be committed to the county jail until he complies with and performs such judgment or is otherwise discharged according to law. Sec. 1536. After such father has been so imprisoned for ninety days, he may, pursuant to the statute, be discharged according to law. Sec. 1537. Upon being so discharged from such imprisonment, the court may, on motion of the mother of the child, from time to time, order execution to issue against such father for such sum as may at any time become due thereon and remain unpaid. Sec. 1538. Such are some of the provisions of the statutes under which it is claimed that judgment in such bastardy proceeding was rendered against the defendant Julius, and upon which he was so committed to jail and discharged, and thereupon two such executions issued thereon against him, and were,’ respectively, returned wholly unsatisfied before the commencement of this action.

1. Upon the trial, counsel for the defendant objected to any evidence under the , complaint, and he now contends that the complaint is fatally defective in not alleging a *135valid judgment in the bastardy proceeding. The statute provides, in effect, that in pleading a judgment of a court of special jurisdiction it shall not be necessary to state the facts conferring jurisdiction, but such judgment may be stated to have been duly given or made, and that if such allegation be controverted the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. Sec. 2613, R. S. Here the complaint alleges., in effect, that on the day named, “ in an action for bastard}‘‘, in which the above-named plaintiff was the complaining witness, the said Rosetta A. Pierstoff recovered a judgment in the municipal court for Dane county against the defendant Julius M. Jorges, in which it was adjudged ” as mentioned in the foregoing statement, and that on the day named “ said judgment was duly docketed by the clerk of said municipal court.”- Such allegations are not denied by the answer of either of the defendants, nor any one of them. On the contrary, such allegations are inferentially admitted, by referring to “said judgment” as an existing, valid judgment. Such being the state of the record, we cannot hold the complaint defective in the particular ‍‌‌‌​​‌​​‌‌​​‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌​‌​‌​​​​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​​‌​​​‌‌​​​‌​​‌‌‌​​‌​‌‌​​‌‌​‌​‌‍mentioned. On the contrary, we think the allegation quoted is equivalent to stating that such judgment had been “ duly given or made.”

2. The objection that the complaint does not show that a legal execution had been issued on the judgment, and returned unsatisfied, is equally untenable. It is alleged that upon the day named “ an execution was, in due form of law, issued against said defendant Julius M. Jorges upon said judgment, to the sheriff,” and “ that said execution was duly returned by said sheriff . . . wholly unsatisfied.”

3. It is contended that the plaintiff had an adequate remedy at law. But no such issue is raised by the answer. Counsel contends that his objection to any evidence under *136the complaint did raise the question, and in support of such contention he cites Trustees of Kilbourn Lodge v. Kilbourn, Wis. 452; Mackey v. Michelstetter, 77 Wis. 210. But in each of those cases the question was raised by regular demurrer. This court has repeatedly held that, “ where the subject matter of an action is of equitable cognizance, a demurrer ore tenus does not go to the point that the plaintiff has an adequate remedy at law, but only raises the question whether the complaint states a cause of action in equity.” Sherry v. Smith, 72 Wis. 339; Becker v. Trickel, 80 Wis. 484.

4. But counsel for the defendants contends that the cause of action alleged is not of equitable cognizance. The claim is that either of the executions might have been levied on the property still in the possession of the fraudulent vendee, Henry Jorges. But the sale from Julius to Henry was not an absolute nullity. It was binding between the parties and, at most, voidable at the instance of those having debts or rights of action against Julius. The return of the sheriff was presumptive evidence that none of the property so held by Henry belonged to Julius. Secs. 3029, 3780, R. S. If the sheriff had any reasonable doubt as to the ownership of such property, or as to its liability to be taken on the execution, then he was not obliged to levy thereon unless the plaintiff indemnified him against any damages he might sustain by reason of such levy. Sec. 2986. Possibly, and we may say probably, the plaintiff was unable to give .such security. Was she thereby prevented from enforcing her judgment ? The mere fact that a party has a remedy at law is not enough to bar him from proceeding in equity, even when the question is properly raised by the pleadings, unless such ‍‌‌‌​​‌​​‌‌​​‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌​‌​‌​​​​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​​‌​​​‌‌​​​‌​​‌‌‌​​‌​‌‌​​‌‌​‌​‌‍remedy is an adequate remedy. The statute declares that “ whenever any execution against the property of any judgment debtor shall have been issued upon a judgment for the payment of *137money, and shall have been returned unsatisfied in whole or in part, the judgment creditor may commence an action against such judgment debtor, and any other person, to compel the discovery of any property or thing in action, belonging to such judgment debtor, and of any property, money, or thing in action due or held in trust for him, and to prevent the transfer” thereof, etc. Sec. 3029, E. B. This statute, upon the return of such executions wholly unsatisfied, seems to have given to the plaintiff the right to file and prosecute this creditor’s bill, notwithstanding the fact that the stallion still remained in the open possession of the defendant Henry. But, even if this were otherwise, yet since it stands confessed that the fraudulent vendee, Henry Jorges, collected and appropriated to his own use $105 on the accounts, and received and appropriated to his own use $50 on the sale by him of the two colts, there can be no serious doubt but that the plaintiff was authorized to proceed by this creditor’s bill to reach such things in action ; and hence, in any view, the case was to that extent one of equitable cognizance, and, the court of equity having taken cognizance of the cause for that purpose, it was justified in going further and granting relief as to the stallion. Peck v. School Dist. 21 Wis. 516; Hebard v. Ashland Co. 55 Wis. 145; Sherry v. Smith, 72 Wis. 343; Crump v. Ingersoll, 47 Minn. 179.

5. It is contended that a resort to equity to collect a bastardy judgment is not permissible, that in such a case the two parties are equally at fault, and that equity will not help the one at the expense of the other. The answer is that the statute gives to the mother of the child a right of action against the father of the child, for her .own benefit and protection. Baker v. State, 65 Wis. 54. The judgment is manifestly based upon a statutory right of action, and must therefore, until satisfied, be regarded as the conclusive evidence of an existing indebtedness.

*1386. The able counsel for the defendants goes still further, and contends that a bill in equity will not lie where, as here, the statute has created a right, and given a remedy without providing for a bill ‍‌‌‌​​‌​​‌‌​​‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌​‌​‌​​​​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​​‌​​​‌‌​​​‌​​‌‌‌​​‌​‌‌​​‌‌​‌​‌‍in equity; and he cites in support of such contention cases from this as well as other courts. These cases are to the effect that, where a new right is given and a specific remedy provided by the same statute, such remedy is exclusive. Arnet v. Milwaukee M. M. Ins. Co. 22 Wis. 521; Hall v. Hinckley, 32 Wis. 368; Smith v. Lockwood, 34 Wis. 72. Had the plaintiff attempted to enforce her claim against the father of her child by an ordinary action, instead of proceedings in bastardy, the rule thus invoked would have been applicable. But here she resorted to the specific remedy given by statute, and has exhausted that remedy without being able to make it available at law. The nature, purpose, and scope of a creditor’s bill has frequently been considered by this court. Clark v. Bergenthal, 52 Wis. 103; Smith v. Weeks, 60 Wis. 94; Ahlhauser v. Doud. 74 Wis. 400; Gilbert v. Stockman, 81 Wis. 602; Bragg v. Gaynor, 85 Wis. 468. This creditor’s bill is merely to bring into exercise the equitable powers of the court to enforce and make effectual the remedy thus given by statute. “ The ground of the jurisdiction, therefore, is, not that of a lien or charge arising by virtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution.” Freedman‘s S. & T. Co. v. Earle, 110 U. S. 716. “Equitable execution,” said Bowen, L. J., “is equitable relief which the court gives because execution at law cannot be had.” Atkins v. Shephard, 43 Ch. Div. 137,—where it was held that “ what is commonly called equitable execution is not in fact execution, but equitable relief which is granted because there is a hindrance in the way of execution at law.” In Barker v. Dayton, 28 Wis. 367, an execution for alimony had been returned wholly unsatisfied. *139Nevertheless, it was held, in effect, that supplementary proceedings, in their nature equitable, were available to enforce collection of the judgment, as in other cases. Smith v. Weeks, 60 Wis. 100. So an equitable action may be maintained to enforce a judgment for alimony. Keyes v. Scanlan, 63 Wis. 345. “ Whenever a general rule as to property or personal rights, or injuries to either, is established by state legislation,” said Mr. Justice Field, “its enforcement by a federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to state limitation.” Railway Co. v. Whitton, 13 Wall. 286. This was so held where ‍‌‌‌​​‌​​‌‌​​‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌​‌​‌​​​​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​​‌​​​‌‌​​​‌​​‌‌‌​​‌​‌‌​​‌‌​‌​‌‍the state statute created a new right of action and then undertook to limit the remedy to the state court. See, also, Osborn v. Ordinary of Harris Co. 17 Ga. 123, 63 Am. Dec. 230. It would hardly be contended that a judgment recovered under such a statute could not be enforced by creditor’s bill.

1. Counsel, moreover, contends that the plaintiff could in no event be regarded as a creditor of the defendant Julius until she had recovered her judgment, and that she did not recover that until four days after the transfers mentioned, and hence that the plaintiff is in no condition to question the validity of such transfers. But the statute expressly avoids every conveyance or assignment of any estate or interest in goods or things in action, made with the intent to hinder, delay, or defraud creditors or other persons of their lawful actions, debts, or demands, as against the person so hindered, delayed, or defrauded. Sec. 2320, R. S. Thus, conveyances made by a man, a short time before his marriage, in fraud of his prospective wife’s right of dower, are voidable under this statute. Jones v. Jones, 64 Wis. 301; S. C. 71 Wis. 513.

We find no error in the record.

By the Gourt.— The judgment of the circuit court is affirmed.