Germania National Bank of Milwaukee v. Lachenmaier

Siebeckeb, J. The plaintiff bank brought action on a note given by the defendant to plaintiff on September 2, 1910, due six months thereafter. On November 19, 1910, [574] this action was commenced by service of the summons and complaint. On the same day, upon affidavit of the cashier of the bank, the plaintiff commenced attachment proceedings based upon sufficient undertaking and an affidavit stating that the debt, evidenced by the note, is to become due thereafter, and that affiant had good reason to believe and did believe that the defendant was about to abscond from the state of Wisconsin, that he had assigned, conveyed, disposed of, or concealed his property, and that he was about to assign, convey, dispose of, or conceal his property or a part thereof with the intent to defraud his creditors. The sheriff of Milwaukee county under the writ of attachment seized property belonging to the defendant amounting to $1,269.35. The defendant on November 21, 1910, delivered to the sheriff his undertaking in the sum of $3,050 signed by the Illinois Surety Company as surety, conditioned that they will pay on demand the amount of any judgments plaintiff might recover against the defendant in this action and in another action between the same parties wherein attachment proceedings were pending, not to exceed the amount of the undertaking. Upon delivery of this undertaking the sheriff returned the property he held under the levy to the defendant. The defendant interposed a special answer in the attachment proceedings denying the existence of the material facts stated in the affidavit of attachment, and the issues so raised were, under stipulation of the parties, tried by the court. It was stipulated that the material evidence offered in either case was to be considered in each case. It appears that the defendant for some time prior to the month of Eebruary, 1910, was conducting a'clothing and furnishing store in the city of Milwaukee, and that he in this month of February became financially embarrassed, which resulted in subjecting him to bankruptcy proceedings, and on March 2, 1910, was adjudged a bankrupt and a trustee was appointed who acted until discharged by the court after de [575] fendant effected a settlement with bis creditors. In a subsequent bankruptcy proceeding tbe plaintiff’s claim on the note in question in this action was allowed as a claim, and before this action was tried the sum of $378 was paid as a dividend thereon. It also appears that the defendant was granted a discharge from all debt on April 9, 1912; that plaintiff appealed from such order of discharge to the United States circuit court of appeals, and that the order of discharge was vacated and set aside in this circuit court of appeals on July 7, 1913, before the trial of this action. Upon the trial of this case the defendant’s acts and conduct in the administration of his business and financial affairs, from the time he borrowed $9,000 from the plaintiff to resume business in March, 1910, to the time of trial, were fully disclosed. They show that he repudiated his indebtedness to the plaintiff about the time his note of $500 became due in October, 1910; that he transferred his banking business from the plaintiff to another bank; that he conducted a clean-out sale in November, 1910, under circumstances of financial strain and in a manner which tended to show that he was manipulating the proceeds in ways calculated to conceal the real transactions and the disposition of the cash realized on such sales. Many of the transactions are characterized by secret and surreptitious dealings with his property and the disposition of the proceeds of his sales which were obviously injurious to his creditors and support the claim that he assigned, conveyed, disposed of, or concealed his property or was about to do so with intent to defraud his creditors. An attentive and careful examination of the facts and circumstances of the case convinces us that the court is amply sustained in its conclusion “That between November 10, 1910, and the time of the commencement, on November 19, 1910, of the attachment proceedings herein, as aforesaid, said defendant, Fred Lach-enmaier, disposed of part of his property, to wit, certain sums of money aggregating $800, with intent to defraud his cred [576] itors, and concealed part of bis property, to wit, certain other-sums of money which he secretly placed in the custody and control of Martin A. Graettinger, with intent to defraud his-creditors.” Upon the record-it was clearly a question of inference of fact whether ox not the defendant disposed of the $800 to his wife with intent to defraud his creditors and whether or not he concealed the moneys he secretly placed into the hands of Graettinger with like intent. The appellant does not dispute that he disposed of his property to the persons as found by the court; but contends that the court erred in finding that defendant did this with intent to defraud his creditors, asserting that this is a question of law and not of fact. Herein the learned counsel fox appellant is not-sustained. As stated in the recent case of St. Louis C. P. Co. v. Christopher, 152 Wis. 603, 140 N. W. 351, “Intent to-defraud a creditor is an essential element of this subdivision of the attachment statute under consideration, and whether or not such intent exists is a question of fact. Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341; Curtis Bros. & Co. v. Hoxie, 88 Wis. 41, 59 N. W. 581.” The circuit court properly awarded judgment against the-defendant. By the Court. — The judgment appealed from-is affirmed-