Weadock v. Kennedy

Obton, J. After the judgment was rendered in this action the plaintiff, E. T. Mundy, died, and the above plaintiff was appointed executor. I shall speak of the said Mundy as plaintiff. # On the 22d day of November, 1888, the defendant, as sheriff, levied a writ of attachment issued in the suit of J. McCann as plaintiff, against John McGee as defendant, upon the property described in the complaint in this action, of the value of about $1,800, as the property of said McGee. In said attachment action judgment was after-wards rendered for $4,338.42. The plaintiff brought this action in replevin to obtain the possession of said property, and claimed the ownership thereof by virtue of a bill of sale executed by the said John McGee' and wife to him on the 7th day of November, 1888, and of a bill of sale executed by the said John McGee to one Kennedy on the 9th day of the month and year last aforesaid, and assigned to him by the said Kennedy. The consideration expressed in both bills of sale was the sum. of $3,000, and each of them conveyed all the property of the said John McGee, except that which was by law exempt. The property attached, and for which this action is brought, is only a part of the property embraced in said bills of sale. The defendant in his answer justified the taking by said writ of attachment, and alleged that when the property was so attached it be — 451 — longed to tbe said John McGee, and that prior to tbe issuing of tbe attaebment tbe said John McGee bad assigned, conveyed, and disposed of part of bis property with intent to defraud bis creditors. It was apparent from tbe answer that tbe defense of tbe action was to be predicated upon tbe fraudulent character of tbe said bills of sale or other conveyances of tbe said McGee, so that tbe court and tbe counsel of tbe plaintiff were apprised beforehand of tbe object of tbe testimony sought at any time to be introduced by tbe defendant. Tbe jury rendered a verdict for tbe plaintiff, and found tbe value of the property to be $1,891.80. On the merits of tbe case we may be permitted to say that tbe testimony tended strongly to show that said McGee was insolvent to tbe knowledge of tbe plaintiff when be executed said bills of sale; that they conveyed all of bis property; and that they were fraudulent as to bis creditors. But we do not feel warranted to reverse the judgment on tbe ground that tbe verdict is not sustained by tbe evidence, for tbe question of intent to defraud in such a case is one of fact, and peculiarly within the province of tbe jury to decide, and their verdict ought not to be disturbed unless tbe evidence very dearly establishes tbe fraud. There was, however, besides tbe special exceptions, but in connection with them, one general and glaring error of tbe court often repeated in the trial, for which tbe judgment ought to be reversed and a new trial bad in the case. That was tbe unreasonable limiting, curtailing, and restricting tbe examination of witnesses while testifying to particular facts and circumstances tending to. show tbe fraud. Fraud, as a question of fact, depends generally upon circumstantial evidence alone, and on a great variety of minor facts, and tbe court should not be technical or illiberal in sustaining objections to questions having tbe least bearing upon tbe issue. If there is any doubt about their materi — 452 — ality, they ought to be answered, rather than rejected as immaterial. If the questions are immaterial, they injure no one. To reject seemingly doubtful questions, in such a case, might sometimes result in great injustice by shutting out important facts. This error in the examination of the witnesses will appear as we dispose of the exceptions to the ruling of the court in sustaining objections to the testimony. 1. The witness Detting had been examined on behalf of the plaintiff in relation to the ownership of the property on the 9th day of November, 1888, and as to what the property consisted of. The plaintiff, on receiving it from McGee, employed the witness to keep and take care of it, and he appeared to know very much about the facts of the sale. He was asked on cross-examination: “Do you know what the value of the property included in the bill of sale was ? ” .This question was objected to by the plaintiff’s counsel, on the ground of its being improper, and the objection was sustained. The question was clearly not an improper one in the case, and was material and relevant to the question of fraud. It was not objected to on the ground of not being proper cross-examination. That objection must be taken specially, or will be disregarded. Knapp v. Schneider, 24 Wis. 70. 2. E. Y. Mundy, the plaintiff, after being examined as a witness in his own behalf, was asked by the defendant’s counsel, on cross-examination, “ What went to make up the rest of the three thousand dollars ? ” The plaintiff’s counsel objected to the question as improper, immaterial, and not proper cross-examination, and the objection was sustained. The plaintiff had been examined by his counsel as to the date of his taking possession of the building in which much o,f the property was situated, and as to his ownership of the building included in the bill of sale, and had stated, on cross-examinatiqn, that McGee’s interest in the building was part of the consideration of the $3,000. The — 453 — questiomwas certainly proper and material, as affecting tbe validity of tbe sale, and it being cross-examination was no proper objection, because be was a party to tbe suit and to the sale. It bas always been tbe practice to allow a party, as a witness, to be cross-examined fully on tbe whole case, and not require tbe adverse party to call him as bis own witness, and, in case tbe issue is tbe fraud of tbe party who bas made himself tbe witness, “ the court should permit a full and exhaustive examination of him upon all questions which have a bearing upon tbe question of tbe good faith of tbe transaction.” Kalk v. Fielding, 50 Wis. 339; Berger v. Clippert, 53 Mich. 468. The court says in tbe last case: “ It- was error for tbe court to cut short tbe cross-examination of tbe witness in this manner. Tbe witness was tbe party who, defendant claimed, bad committed a fraud on bis creditors.” Lane v. Starky, 15 Neb. 285; Craig v. Fowler, 59 Iowa, 200. In the last case tbe court said: “ Tbe court below ought to have given larger latitude to tbe examination of tbe plaintiff and other witnesses.” Tbe question put to .the plaintiff, “ Who owned tbe shop ? ” was improperly rejected on tbe same grounds, after tbe court bad asked tbe witness whether bis counsel bad inquired of him about tbe ownership of tbe shop. 3. Tbe witness Eoss was one of tbe attorneys of McGee, witnessed tbe bill of sale, and it was drawn in bis office, and delivered to Mundy in bis presence, as be bad testified on behalf of tbe plaintiff. He, was asked, by defendant’s counsel: “. What was tbe consideration of tbe bill of sale ? Do you know what tbe consideration for this bill of sale was?” Tbe objection that these questions were not proper cross-examination was sustained by tbe court. Tbe attorney comes reasonably within tbe rule of tbe party in respect to cross-examination. He bad testified about tbe bill of sale; and it would appear to be strictly proper, as cross-examination, to ask him what tbe consideration was which was a part of tbe bill of sale. — 454 — 4. Tbe witness Hunter had testified, in behalf of the defendant, that McGee, about the 9th day of November, 1888, offered to sell his property to him, and he was asked: “ Did or did not his offer include his personal property generally?” The general objection of the counsel of the plaintiff to this question was sustained. The only objection which can be thought of is that it was leading, and that objection must be special. Teegarden v. Caledonia, 50 Wis. 292. 5. The witness Nyquist, on behalf of the defendant, was asked by his counsel: “ Do you know what the value of that machinery was at the time?” The objection that it was immaterial was sustained. The court gave as a reason that “ it was not involved in the case.” The machinery was in the bill of sale, and its value was therefore a material subject of inquiry on the question of fraud. 6. This same witness testified that about the 13th day of November, 1888, he asked John McGee: “What was up, and how this thing — the work — stands, and if he was going bn.” He told him it was something. “ They are trying to beat me out. But be quiet! I am going to see who is going to come out ahead.” The witness was then asked by defendant’s counsel: “Be quiet about what?” The general objection to this question by the plaintiff’s counsel was sustained. The answer to this question might have been, “ Be quiet about this sale,” and tend to show seereey of the transaction as a badge of fraud on the part of the vendor, McGee. The question was material and proper. , 1. One of the grounds of the motion for a new trial in the case was that the attorneys, Messrs. Boss & Dwyer and Champ Green, Esq., who appeared for the plaintiff in this case, were on opposite sides of a case on the calendar called for trial nest before this case, and it was agreed between them that they should strike from the panel certain three jurors on each side, so as to have such six jurymen — 455 — called in this case, and this was done according to said agreement. Three of said jurors were challenged peremptorily by the defendant in this case, and the other three were jurors in the case. These facts appear in certain affidavits, and are virtually admitted by said attorneys. It is contended by the learned counsel of the appellant that it was error for the court to deny the motion for a new trial on that ground. Such a practice, as one of the “ tricks of the trade,” may indicate ingenuity and far-seeing sagacity, and might not be approved by the ethics of the bar. But it does not appear that the defendant suffered any injury from it. These jurors were presumably and probably good and lawful men of the county, and competent, and, so far as known, discharged their duties as jurors fairly and impartially. It was not shown that they knew of this professional or unprofessional agreement, and consequently ■they were not affected by it. It does not appear that the plaintiff obtained any advantage, or that the defendant suffered any injury, by it. It was not; therefore, a material ■error for the court to deny the motion for a new trial, so far as that ground was concerned. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.