Teweles v. Lins

74 N.W. 122, 98 Wis. 453, 1898 Wisc. LEXIS 152

• Court: Wisconsin Supreme Court
• Decided: February 8, 1898
• Status: Published

Opinion

PiNNEY, J-.

1. Some question was made at the argument as to the sufficiency of the traverse of the affidavit, and of the right of the defendant’s assignee to join in the same,, but no question appears to have been made in that respect in the court below. In Eureka Steam Heating Co. v. Sloteman, 67 Wis. 119, it was held that, where both the assignor and his assignee for the benefit of creditors appear and traverse-the affidavit for an attachment in an action against the former, the plaintiff is in no way prejudiced by the order making the assignee a party defendant and permitting him to traverse the affidavit. The traverse must therefore be held sufficient. The defendant had a right to traverse the affidavit, notwithstanding he had made an assignment of his property for the benefit of his creditors. Keith v. Armstrong, 65 Wis. 225. But, upon the traverse of an affidavit for an attachment, neither the alleged liability, nor the amount thereof, can be denied. R. S. 1878, sec. 2745 Littlejohn v. Jacobs, 66 Wis. 600. The so-called-judgment, from a part of which the appeal was taken, was a mere order, and subject to appeal only as such. R. S. 1878, sec. 2746.

2. The finding upon the trial of the traverse -was confined to the cause alleged for the attachment, namely, whether the indebtedness of the defendant to the plaintiff was fraudulently contracted; and there was no finding as to the allegation that Lins, the defendant, was about fraudulently to convey away, sell, and conceal his property, with .intent to cheat and defraud his creditors. The case, in that respect, appears to have wholly failed. The bill of exceptions does not contain sufficient evidence to warrant a finding in support of such cause.

The issue in respect to whether the debt was fraudulently contracted extended to the entire indebtedness of $1,800>-stated in the affidavit. We perceive no reason for holding that the cause for attachment in such case is not, so to speak,, divisible,— that it may be proved and found to have existed as to part of the debt, and not as to the remainder, as in the present case. The court sustained the attachment as to the sum of $750, and ordered that it be not sustained as to the sum of $1,046.10; finding that the allegations of the attachment as to the sum of $1,046.10 were not proven, but were fully proven as to the said sum of $750.

The finding embraces cross demands between the parties,, but there is no finding as to the amount due to the plaintiff upon the cause of action upon which he sued, nor was any judgment given on that question. It was not within the-scope of the issue under the traverse to establish or adjust the cross demands mentioned in the finding. These questions could only properly be investigated and determined upon the trial of the issue as to the merits in respect to the plaintiff’s cause of action.

3. The evidence fully sustains the allegation of the affidavit that the plaintiff’s debt, as to the sum of $750, was fraudulently contracted. The-objective point of the plaintiff’s appeal appears to "be that part of the order made in favor of the defendant dismissing the attachment as to the-$1,046.10. The finding, as well as the evidence given at the-trial, is decisive to show that as to said sum of $1,046.10 the attachment should not have been sustained; and to that extent it was properly dismissed, although rightly sustained as to the sum of $750. The portion of the order appealed-from by the plaintiff must be affirmed, and, as it is an appeal, from a mere order, no exception to the order for that purpose was necessary. Williams v. Holmes, 7 Wis. 168; Tubbs v. Doll, 15 Wis. 640; Dunbar v. Hollinshead, 10 Wis. 505; L. A. Shakman & Co. v. Koch, 93 Wis. 598; R. S. 1878, sec. 3069, subd. 3.

By the- Oourt.— The part of the order of the circuit court appealed from is affirmed.