Couldren v. Caughey

Dixon, C. J. The motion to dismiss the appeal in this case must be denied. An examination of the record shows that the appeal was regularly taken, according to the requirements of the general law, by the service of notice and filing of the proper undertaking with the clerk on the 24th day of May, 1871. laws of 1860, ch. 264, secs. 21,29. The order being one which refused or set aside a provisional remedy, there can be no doubt about its appealability. Id., sec. 10, subcL 8; Noonan v. Orton, 28 Wis., 386. And although the order discharging the attachment was made on the 17th of March, and the appeal not taken until the 24th of May thereafter, yet, as it does not appear that any written notice of the making of the order had been given to appellant, it follows that the thirty days prescribed by section 9 had not begun to run. Corwith v. The State Bank of Illinois, 18 Wis., 560. The appeal having been thus regularly perfected, it follows that it cannot be dismissed because it was not taken in pursuance of chapter 139, Laws of 1861, or because the appellant failed to comply with the provisions of that chapter so as to secure a continuance of the attachment pending the appeal. It appears from the record, that the appellant did enter into and tender an undertaking with surety to respondent, upon which the court below made an order continuing the attachment until the. decision of the appeal, or until the further order of the [321] court; and it is objected that sucb. undertaking was insufficient, because “immediate notice of appeal’.’ was not given, and because the undertaking was made before sucb notice, and not “ witbin three days thereafter,” as required by tbe act. But, whether sucb undertaking was properly given or not, or whether the court below was right or wrong in making the order continuing the attachment, are obviously questions not before us on this appeal. They can constitute no ground for, and cannot be considered for the purpose of dismissing the appeal from the original order, which, as has been seen, was regularly and properly taken and perfected. Upon the merits of the order appealed from, we quite agree with the court below, and think the attachment was properly dissolved. The only ground upon which the proceeding is sought to be sustained is, that the defendant had disposed of his property with intent to defraud his creditors. Upon this issue the evidence on the part of the plaintiff in support of it almost entirely failed. It is true that the declarations of the defendant, made to the plaintiff, that he would not pay the debt, and the reasons assigned by him for it, have some tendency to show a fraudulent intent. But the great effort was to show a secret disposition by the defendant of the promissory notes for $3,000 received by him on the sale of his interest in the farm, as to which the proof made by plaintiff was signally defective and insufficient. The possession of the notes by the witness Ball was fully explained, and was for a justifiable purpose, and entirely innocent and proper; and, although the witness was strongly pressed to say that there was some agreement or understanding between him and the defendant, or request on . the part of the latter, as to witness’ possession of the notes being kept a secret, yet nothing of the kind was shown. And so with regard to the possession of the notes by Goddard and Miller, and by the defendant’s uncle John; no fraudulent intent or purpose in delivering the notes to those parties was shown. At most, it appears that the notes were only deposited with [322] them for safe keeping. They were not sold or disposed of, nor any attempt made to transfer them secretly in order that the defendant might obtain the proceeds free from the claims of his creditors. It appears that the defendant contemplated being and was absent a considerable part of the time from the state, which may sufficiently explain why he wished to make such deposit of the notes with some one here. At all events, the mere deposit .of such securities, or of any other property, with some third person for safe keeping, that being shown and nothing more, which is all that can be inferred from the testimony here, is not a fraudulent disposition of it as to creditors within the meaning of the statute authorizing the issuing of the writ of attachment on that ground. By the Court. — Order .affirmed.