Montana Lumber & Manufacturing Co. v. Gerhold

Montana Supreme Court

Montana Lumber & Manufacturing Co. v. Gerhold

44 P. 87, 17 Mont. 558, 1896 Mont. LEXIS 38

DecidedMarch 2, 1896

StatusPublished

This text of 44 P. 87 (Montana Lumber & Manufacturing Co. v. Gerhold) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Montana Lumber & Manufacturing Co. v. Gerhold, 44 P. 87, 17 Mont. 558, 1896 Mont. LEXIS 38 (Mo. 1896).

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Opinion

De Witt, J.

The argument of the appellants is that, if defendant Gerhold was solvent, and had' property, other than the real estate in question, out of which the judgment could have been satisfied, he had the right to convey to Schmid, even without any consideration; in other words, to give the real estate to Schmid.

He calls our attention to the instruction set forth in the statement and to finding No. 5. Appellant’s contention is that, pursuant to the instruction mentioned, the jury found that Gerhold had other property out of which the judgment could have been satisfied by execution. But upon an analysis of [563]*563finding No. 5 it is observed that the jury did not reach the conclusion that appellant contends for. The jury did not find that when the plaintiff reduced his claim to judgment on August 29, 1892, Gerhold had any property subject to execution. They found that he had property ‘ at the time or since the making of said deeds to Schmid. ’’ This finding, of course, is wholly indefinite. It does not state that Gerhold had sufficient property subject to execution at any particular time. It may have been' at the time of making the deeds, or at the date of the judgment, or it may have been any day since that time. There is nothing in the finding from which the court could detex-mine that Gerhold was possessed of any property other than the real estate which is the subject of this action, either when the original action was commenced or when the judgment was entered, or when this present action was commenced.

This is the only question raised by the appeal. The judgment must therefore be affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.

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De Witt, J.

The argument of the appellants is that, if defendant Gerhold was solvent, and had' property, other than the real estate in question, out of which the judgment could have been satisfied, he had the right to convey to Schmid, even without any consideration; in other words, to give the real estate to Schmid.

He calls our attention to the instruction set forth in the statement and to finding No. 5. Appellant’s contention is that, pursuant to the instruction mentioned, the jury found that Gerhold had other property out of which the judgment could have been satisfied by execution. But upon an analysis of [563]*563finding No. 5 it is observed that the jury did not reach the conclusion that appellant contends for. The jury did not find that when the plaintiff reduced his claim to judgment on August 29, 1892, Gerhold had any property subject to execution. They found that he had property ‘ at the time or since the making of said deeds to Schmid. ’’ This finding, of course, is wholly indefinite. It does not state that Gerhold had sufficient property subject to execution at any particular time. It may have been' at the time of making the deeds, or at the date of the judgment, or it may have been any day since that time. There is nothing in the finding from which the court could detex-mine that Gerhold was possessed of any property other than the real estate which is the subject of this action, either when the original action was commenced or when the judgment was entered, or when this present action was commenced.

This is the only question raised by the appeal. The judgment must therefore be affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.

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Bluebook (online)

44 P. 87, 17 Mont. 558, 1896 Mont. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montana-lumber-manufacturing-co-v-gerhold-mont-1896.