Miller v. Drane

99 N.W. 1017, 122 Wis. 315, 1904 Wisc. LEXIS 150

• Court: Wisconsin Supreme Court
• Decided: June 10, 1904
• Status: Published

Opinion

Winslow, J.

The trial judge rightly says in his opinion filed in this case that, if the plaintiff be a mere general creditor, it must be conceded that she could not maintain this action. Authorities need not be cited in support of this proposition. But he concluded that she was in some sense a judgment creditor by virtue of the judgment in the previous action, and hence was able to attack the alleged fraudulent transfers by creditors’ bill.

We are unable to agree with this proposition. The previous action was brought to construe the terms of the will of Sarah Drane and determine its effect upon the $2,000 obligation in question; and this court determined, in effect, that under the terms of the contract as modified by the will no'part of the money would become due until the death of Hiram Drane; that hence the statute of limitations did not run, and the indebtedness could not be recovered, until the death of Hiram Drane, when the remedy might be had against his estate. Miller v. Drane, 100 Wis. 1, 75 N. W. 413. It appears by the complaint tbat, when tbe action was thereafter tried in circuit court, a judgment was rendered to tbe effect tbat tbe present plaintiff was tbe lawful owner of tbe obligation, tbat no part of it bad been paid, tbat it did not become due and payable or enforcible until tbe death of Hiram Drane, and tbat tbe statute of limitations does not run against it during tbe lifetime of said Drane. This was all that was decided, and it seems plain tbat tbe only effect of the judgment is to determine tbe ownership and legal effect of tbe contract. It cannot be held tbat by tbat judgment tbe obligation became in any sense a judgment for. money against Drane, or a lien upon bis real estate. In case of bis death tbe claim would manifestly have to be presented against tbe estate or it would be barred. Hence we must bold tbat tbe plaintiff was at most a mere general creditor, without lien of any kind upon Hiram Drane’s real estate, and ctonot attack tbe transfers in question.

By the Court. — Order reversed, and action remanded with directions to sustain the demurrer to the complaint and for further proceedings according to law.