Drake v. Buck

Miller, J.

The first error assigned is the overruling of appellant’s motion for a new trial, based upon the insufficiency of the evidence to sustain the verdict.

Tbe question of fraud was fairly submitted to the jury upon the evidence, which was reasonably sufficient to authorize the jury to find the issue for plaintiff. The garnishee was the brother-in-law'of one of the members of the firm of Billings & Co. The evidence tends to show that the firm was ■ in failing circumstances at the time of the transfer. The purchase was of an entire stock of goods without inventory, in gross estimated at $2,000, and all the other assets of the firm, consisting of book accounts, notes, and between $500 or $600 worth of eggs, which were spoiled, all estimated at $2,200. The accounts were taken at their nominal value. The consideration for the purchase was a mortgage held hy appellant on the stock of goods for $2,200, which was delivered up, and appellant executed his promissory note'for the balance, which the evidence tends to show was delivered to appellant’s sister, the wife of one of the members of the firm. The evidence also tends to show that appellant knew of the failing circumstances of Billings & Co., and of their object in getting rid of their property. We are satisfied with the verdict of the jury upon the issue of fact.

II. On the trial appellant asked the court to give the following instruction : “ The sale of the entire stock in trade by M. H. Billings & Co., to defendant, is not of itself a badge of fraud, and of itself raises no presumption of fraud ” This was refused, and this ruling is assigned as error. This instruction is substantially given in the charge of the court, and itwas not error, therefore, to refuse to give it again.

III. The appellant also requested the court to give the following instructions: “ The answer of the garnishee agreed upon by the parties is a part of the evidence in this cause, and is entitled' to the same credit and weight as though the garnishee had been placed on the stand, and his testimony given on the trial of the case.” This also was refused, and its refusal is assigned as error. There was no error in this ruling. The statute makes the answer of the garnishee, in the trial of the issue taken thereon, “ competent testimony.” Rev., § 3208. But the credit and weight to which it is entitled should be left to the jury. The court is not authorized to direct the jury in respect to the credit and weight to be given to the answer of the garnishee. It is the province of the court to determine the competency of evidence offered, but that of the jury to determine its credit and weight when admitted.

¥e find no error in the record and the judgment will be

Affirmed.