Dodge v. Knapp

87 S.W. 47, 112 Mo. App. 513, 1905 Mo. App. LEXIS 150

• Court: Missouri Court of Appeals
• Decided: May 2, 1905
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). 1. Appellant makes the point that her demurrer to the evidence should have been sustained, on the ground that the order of April 19, 1904, reviving the original judgment against the administratrix of Ralph Hammond Pybus merged that judgment in the one as revived and had the legal effect to waive the lien of attachment on the property in the hands of the garnishee. In respect to this point, if there was an instruction offered by appellant to the effect, that under the law and the evidence the respondents could not recover, sometimes erroneously termed a demurrer to the evidence, it failed to get into the record. The service of process of garnishment on appellant had the effect of attaching in her hands all personal property, money, rights, credits, etc., of the defendant in the execution, Ralph Hammond Pybus (sec. 3436, R. S. 1899); but did not create a specific lien in favor of the respondents upon the money or property bf Pybus in the garnishee’s hands, but created only such a lien as gave the respondents the right to hold appellant personally liable for it or its value. [McGarry v. Lewis Coal Co., 93 Mo. 237, 6 S. W. 81; Calumet Paper Co v. Haskell Show Ptg. Co., 144 Mo. l. c. 339, 45 S. W. 1115; Marx v. Hart, 166 Mo. l. c. 524, 66 S. W. 260.] By the service of the garnishment on appellant, the process or suit to enforce the attachment against the money, etc., in her hands was begun (Marx v. Hart, supra; Westheimer & Sons v. Giller, 84 Mo. App. 122); and where, as was done in this case, the answer of the garnishee to the interrogatories propounded to her is denied and the garnishee replies to the denial, the issue or issues raised by the denial and the reply, by section 3451, chap. 33, entitled “Garnishment,” R. S. 1899, is declared to be the sole issue or issues to be tried, hence the question raised by appellant’s second and third points, that the execution and return of the service of garnishment were not offered in evidence, are not available on a trial of the issues raised by the denial and the reply. The only method by which the sufficiency of the service of the garnishment could have been properly brought to the attention of the trial court was, under the circumstances, either by a plea in abatement or by motion to quash the return of the officer of the service of garnishment. By filing her answer to the interrogatories, the garnishee appeared generally to the proceedings and this general appearance was a waiver of any defect in the service of the process, if there was any, and especially is this so where it is stated, as did the appellant in her answer, “that having been summoned as a garnishee in the above-entitled cause, makes answer to the interrogatories of said plaintiffs as follows.” By this declaration in her answer, appellant admitted that she had been summoned as garnishee in a lawful manner and for a lawful purpose. [Keith v. Territory, 57 Pac. 834.] The term “duly summoned” signifies that appellant was properly and regularly served with notice of garnishment. [Robertson v. Perkins, 129 U. S. 233; Bank v. City of Port Townsend, 47 Pac. 896.]

2. The fourth point relied on by appellant is that the court erred in admitting the record of the prior equity suit between the parties. It is the well-settled law in both civil and criminal cases that where it is essential to prove intent or motive to solve the question, it is admissible to prove that the party charged, at or about the same time, committed other frauds; in criminal cases for passing counterfeit. money, forging or putting into circulation other forged notes and the like; and in civil cases, alleging fraudulent transfers of property by defendant, it is competent to show that he executed other fraudulent conveyances of his property with the intent to hinder and delay his creditors, if such conveyance were a part of the same system, conspiracy or scheme made in furtherance of the same fraudulent purpose. In respect to the admissibility of this character of evidence, the law is well stated by Judge Ellison in Tracy v. McKinney, 82 Mo. App. l. c. 512, as follows:

“Where a fraudulent intent is a necessary element in a case then other similar practices are admissible for the purpose of showing the intent. These questions frequently arise in both civil and criminal cases. The devices to hide a fraudulent purpose in civil transactions are as numerous as the excuses offered to avoid criminal responsibility, and so where the legal wrong depends upon the intent you may, in either case, show other similar acts for the purpose of characterizing the one on trial. In receiving stolen goods, burglary, passing counterfeit money, fraudulent pretenses, etc., the act is frequently admitted by the accused, but the excuse of innocent purpose is interposed. In such cases, other crimes or attempts of the same nature are admitted on that question. And the same is true of civil cases. [Davis v. Vories, 141 Mo. 234; Wood v. U. S., 16 Pet. 342; Bottomley v. U. S., 1 Story 135; Trogdon v. Commonwealth, 31 Gratt. 862.]”

Dr. Wharton states the doctrine as follows: “Where fraud in a transaction is the question in dispute, to solve this question it is admissible to prove that the party charged was guilty'at the same time of other frauds, part of the same system.” [Wharton’s Law of Evidence, section 33.]

In Bottomley v. United States, 1 Story 135, the general doctrine is declared by Judge Story to be that in cases of conspiracy and fraud, evidence of other acts, in furtherance of the same general design, is admissible; “first to establish the fact, that there is such a conspiriacy and fraud; and, secondly, to repel the suggestion that the acts might be fairly attributed to accident, mistake, or innocent rashness, or negligence.”

In Wood v. United States, 41 U. S. 342, it was held:

“The question was one of fraudulent intent, or not, and upon questions of that sort, where the intent of the party is the matter in issue, it has always been allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate his intent or motive in the particular act directly in judgment.” Hennequin v. Naylor, 24 N. Y. 139, and Whittier v. Varney, 10 N. H. 291, announce the same doctrine. Numerous cases from all the State courts, with a few exceptions, and from the courts of England might be cited in support of the doctrine.

Wigmore, in his late work on Evidence, vol. 1, sec. 333, says: “But it is not necessary that the rigorous test of the System rule should be applied, i. e., that the other transfers should be so connected as to disclose a general scheme; ... it is enough that the other transfers .occurred under such circumstances as to tend to negative good faith in the transfer charged.”

We think it was clearly competent to prove that the garnishee had been a party to other fraudulent acts and doings with the intent to hinder and delay the respondents in the collection of their debt, and it only remains to decide whether or not the judgment roll in the equity case was .admissible for the purpose of showing that she was a party to the fraudulent conveyances declared fraudulent in that suit. Respondents were plaintiffs in the equity suit and Anna Knapp was one of the defendants. One of the issues in the equity suit was whether or not Anna Knapp and her son, Ralph Hammond Pybus, and her daughter, Georgia Knapp, had entered into a fraudulent conspiracy or agreement to hinder and delay the plaintiffs in the collection of their judgment against Pybus, and whether or not in furtherance of said conspiracy they had executed certain conveyances of real estate with the intent to hinder and delay the respondents in the collection of their debt. The difference in the two suits is in respect to the subject-matter. The equity suit was to set aside fraudulent conveyances of real estate, brought by respondents and against Anna Knapp, as one1 of the defendants. The ground relied on to set aside the conveyances was that they were made with intent to defraud the respondents as creditors of Pybus. The ground relied on to charge the garnishee is that Pybus, her son, transferred the fifty-four or fifty-five hundred dollars to her for the fraudulent purpose of hindering respondents in the collection of their debt. The principal question for solution in both proceedings was whether or not the conveyances in the one case and the transfer of money in the other were both for the same fraudulent purpose of hindering and delaying the respondents in the collection of their debt. The record in the equity case shows that Anna Knapp and her son, Ralph Hammond Pybus, were parties to fraudulent conveyances of real estate executed for the express purpose of hindering and delaying the respondents in the collection of their judgment against Pybus, the same debt they are now endeavoring to collect of Anna Knapp, as garnishee. If, as the record conclusively shows, the conveyance of the real estate were fraudulent, it (the judgment) is a collateral fact tending to show that the transfer of the money by Pybus to his mother was with the intent to1 hinder and delay the creditors of Pybus, and that the conveyances of real estate and transfer of the fifty-four hundred dollars were in furtherance of the same system or scheme to defraud the respondents. In fact, the issue of intent to defraud respondents having been raised and adjudged against the garnishee in the equity suit, it seems to us that, on the principle that a judgment as to all points and questions litigated and determined by it is conclusive between the parties, the judgment was not only admissible but was conclusive evidence that the garnishee had participated in the fraudulent conveyances of real estate for the purpose of hindering and' delaying respondents in the collection of their debt and that she is estopped by the judgment to deny in the present suit that the conveyances of real estate were not made for the purpose of defrauding the respondents. [Black on Judgments, sec. 609.]

In Hahn v. Miller, 68 Iowa 745, it was held that a judgment for defendant in an action for obstructing a watercourse, if based upon the ground that there was no watercourse to be obstructed, was conclusive in a subsequent action of the non-existence of the watercourse.

“A judgment,” says Freeman (1 Freeman on Judgments, sec. 256) “necessarily affirming or denying a fact is conclusive of its existence whenever it becomes an issue between the same parties.”

As a collateral fact tending to prove the principal issue on trial, to-wit, whether or not the transfer of the money was made with intent to defraud, the judgment was an issue of fact collateral to the main fact, whether or not the garnishee had been a party to other fraudulent conveyances and transfers of property with the intent to hinder and delay respondents in the collection of the judgment. We think the equity judgment was not only admissible to. show this collateral fact, but that it was conclusive proof of it, for it is well-settled law that where the effect of a judgment is to settle a particular issue of fact, that issue must be held res judicata as to the adversary parties to the suit and it is not essential to the conclusiveness of the judgment that all the parties to both proceedings are the same. [Nave v. Adams, 107 Mo. 414, 17 S. W. 958; Young v. Byrd, 124 Mo. 590, 28 S. W. 83; Wiggin v. St. Louis, 135 Mo. 558, 37 S. W. 528.] The case of Gutzweiler’s Adm’r v. Lackmann, 39 Mo, 91, cited and relied on by appellant, is not in point. The alleged fraudulent conveyance sought to be introduced in evidence in that case was in nowise connected with the transfer of the property under investigation. Of course if transactions are wholly disconnected and have no bearing one upon another, the proof of one can in nowise affect the other.

3. The letters of administration on the estate of Pybus were objected to as evidence, on what ground is not stated. The judgment against Pybus was revived against his administratrix on stipulations of the parties which necessarily assumed and admitted that letters of administration had been granted. There was no necessity for introducing the letters and no ground to object to them when offered, except that they prove an admitted fact in the case.

4. The contention made by the appellant that the subsequent creditors cannot attack a conveyance or transfer successfully, without showing a fraudulent intent to defraud creditors existing at the date of the transfer or a specific intent to' contract debts and not pay them, has no application to the facts in this case for the reason it is conclusively shown that Pybus’ indebtedness to respondents was contracted prior to the transfer of the money by Pybus to his mother.

5. It is contended that instructions numbered 1 and 2 for respondents submitted the case to the jury on an erroneous theory. There is no foundation for this contention, and, besides, appellant’s instructions given shows that she adopted the same theory. Having adopted this theory she cannot assert a different one on appeal. [Christian v. Ins. Co., 143 Mo. 460, 45 S. W. 268; Drug Co. v. Self, 77 Mo. App. 284; Grocery Co. v. Smith, 74 Mo. App. 419.]

The case was fairly tried and the judgment is manifestly for the right party, therefore it is affirmed.

All concur. Goode, J., in result.