Keep v. Sanderson , 12 Wis. 352 ( 1860 )

By the Court,

PAINE, J.

We hare no doubt of the right of the judge below to amend his finding after an exception taken. The object of exceptions on the trial, and to the instructions of the court to the jury, is to call the attention of the judge to the particular point of objection, that he may correct at the time any thing which he may think needs correction. Where the trial is before the judge without a jury, and he afterwards files his finding, if, on exception afterwards filed, he has no power to amend it, one of the principal objects of an exception at the trial, for which these written exceptions are a substitute, would be defeated. We think the right exists, and that the time and manner of its exercise must depend in a great measure upon the discretion of the judge who tries the case. Sands vs. Church, 2 Seld., 347, sustains such right of amendment. The amended finding we think sufficient to sustain the judgment. It finds the fact of the assignment, setting forth a copy of it. And although it does not say that the judge finds it fraudulent, yet tMs court has decided upon this identical assignment, that it must be deemed “by its very terms,” “fraudulent in law and in fact.” It was said that the court did not state in the finding that this was the same assignment previously decided upon by this court, and that although that fact was admitted on the trial, yet we cannot look to that admission in determining whether the finding itself is sufficient to support the judgment. TMs is perhaps true, yet we do not deem such statement necessary. For it appears at all events that the assignment set forth is in the same words as the other, and if the' other is “ by its terms fraudulent in law and fact,” then tMs, which is in the same terms, whether the same instrument or not, must be equally so deemed. The court having decided that an instrument in those terms is fraudulent in law and fact, we think its invalidity sufficiently appears in the finding, when its terms appear. The invalidity of the assignment is necessarily included in the general finding, that the proceeds of the property assigned were liable for the debts of the assignors.

It was claimed by the counsel for the appellant, that this court, in the case of Kearney and others vs. Norton, decided at the last term, had overruled the previous decision in the case of Keep vs. Sanderson. But certainly we did not intend to do so, and we think there is nothing in the opinion which warrants that conclusion. On the contrary, the decision in Kearney vs. Norton is placed expressly upon the different language of -the assignment, which was not the same nor equivalent to that used in the instruments decided fraudulent in Keep vs. Sanderson and Hutchinson vs. Lord. It will be seen by reference to the latter case, (1 Wis,, 813, et seq.,) that great stress is laid on the use of the word “terms," in connection also with the word “prices.” The latter word being used, it was held that the word “ terms ” must be held to relate to the time of payment, and imply a power to sell on credit. There is nothing in the reasoning that goes to show that the court would have extended the same rule to an instrument like that in Kearney vs. Norton, in which the assignee undertook to dispose of the goods, &c., to the best advantage “in his discretion," &c. As there are many matters upon which an assignee might be called upon to exercise a sound discretion in disposing of assigned property, even though not selling on credit, we construed that language in the instrument as referring only to such discretion as he might properly exercise, and not as implying an illegal discretion to do acts which would avoid the instrument, without intending to disturb the previous decisions upon the effect of specific words in an assignment. We shall therefore adhere, without hesitation, to the decision already made by this court, between these parties, upon this assignment, holding it void.

And we have no doubt the assignee is liable, although he had disposed of the identical property transferred, and received cash or other property in its stead. If this were not so, it would be very easy for a fraudulent assignee or purchaser to elude all responsibility by a speedy disposition of the property, and putting the money in his pocket. The creditors may take the property or its proceeds in his hands.

We think there was no error in refusing to admit the answer of the garnishee in evidence on the trial of this issue. An issue having been made, it would seem that it should be tried irrespective of the answer. Lasley vs. Sisloff, 7 How. (Miss.), 157. But as the law now is, the defendant was permitted to testify in his own behalf, and accordingly had his deposition taken, which was read in evidence. This being so, he certainly had all the benefit that he could have had from his answer.

Nor do we think there is any weight in the objection that there was a want of jurisdiction to render the judgment in the original attachment suit. The argument is this: The debtors being non-residents and not being served, there was no jurisdiction, unless their property or indebtedness was attached in the hands of the garnishee. But as the garnishee denied having any property or being indebted, and as this had not been determined at the time of entering judgment against the principal debtor, it is therefore claimed that there was no jurisdiction to enter that judgment; because, it is said, the jurisdiction must exist at the time, if it exist at all, and cannot be acquired by anything happening afterwards. This proposition is very true, but does not support the conclusion sought to be derived from it. Eor if it eventually turns out that the garnishee had property or was indebted, then the property or indebtedness was attached at the time of the service upon the garnishee. And it is that fact which gives jurisdiction against the principal debtor, and not its subsequent legal ascertainment. And the fact, if it exist at all, existed at the time of the entry of the judgment, and therefore jurisdiction existed, and was not conferred, but only ascertained, by the subsequent judgment against the garnishee.

We think the conclusion of the court below, as to the amount, warranted by the evidence, so far as to sustain this judgment, and must therefore affirm it, with costs.