Flanders v. McDonald

39 Wis. 288

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Cole, J.

Tbe motion to dismiss tbe appeal because tbe printed cases were not served fifteen days before tbe commencement -of tbe present term, must be denied. Tbe cases were actually served on tbe respondent’s counsel on tbe 30tb of December last, and retained. Tbe motion to dismiss was made and beard on tbe 1st of February. Under tbe decision in Hundhausen v. Atkins, 36 Wis., 250, tbe motion was too late.

Tbe appeal is from an order dissolving and setting aside an attachment. Tbe affidavit stated, as grounds for tbe attachment, that tbe defendant bad assigned, disposed of or concealed, or was about to assign, dispose of or conceal, bis property with intent to defraud bis creditors; and that tbe defendant bad fraudulently conveyed or disposed of bis property, or a part of it, with intent to defraud bis creditors. Tbe defendant traversed these statements in tbe affidavit; and tbe court, on that issue, dissolved tbe attachment.

Tbe evidence is ample and clear of the existence of some, if not all, of these grounds for an attachment. The transactions between tbe defendant and tbe Blackmans, as detailed by themselves, are inconsistent with any fair and honest course of dealing. They plainly indicate an intent, participated in by all concerned, to place tbe defendant’s property beyond tbe reach of bis creditors. Tbe defendant was embarrassed and unable to pay bis debts. Upon being pressed by tbe plaintiff for payment of bis claims, be tons over to tbe Blackmans, or sells to them, bis brick yard property, worth $2,000 or more. He says that he was owing Reuben Blackman a board bill of $200, and that he first placed this property in Reuben’s possession to enable the latter to make the amount of the debt by sale of the brick. A few months later he sells 'the property to A. ~W. Blackman — an irresponsible person,— taking a note for $150. And afterwards he makes another sale of the property to the same vendee, taking another note of a like amount. During all this time he was dealing with the property as his own, and as if he had never parted with the title. It is impossible to account for all these acts upon the theory that the parties were dealing with each other in an honest, business-like manner. The transactions, upon their very face, bear conclusive evidence of fraud and evil intent. And we fully concur in the correctness of the remark of plaintiff’s counsel, that if the attachment was not warranted in this case, it is impossible to conceive of a case where an attachment would lie for a fraudulent disposition of property, accomplished or meditated with intent to defraud creditors.

By the Qov/rb. — The order of the circuit court dissolving the attachment is reversed, and the cause is remanded for further proceedings according to law.