
    Mace, Respondent, vs. Roberts, Garnishee, Appellant.
    
      September 28
    
    October 22, 1897.
    
    
      Fraudulent conveyances: Garnishment in aid of execution: Evidence: Judicial notice: Appeal.
    
    1. In. a garnishment proceeding in aid of his execution, a judgment creditor may attack as being fraudulent a transfer of property by the judgment debtor to the garnishee.
    3. In such garnishment proceeding the court will take judicial notice of the proceeding and judgment before it in the original action, and therefore the plaintiff need not formally offer, the record thereof in evidence at the trial.
    3. The objection that the plaintiff failed to offer such record in evidence, in such a case, cannot be taken for the first time in the appellate court.
    4. Where, in such a case, the evidence tended to show that the debt- or’s transfer of property to the garnishee was fraudulent, and the testimony of the garnishee was indefinite; and when required to produce his books and papers containing an account of his transactions with the debtor he failed to do so, held, that a finding that the transfer was fraudulent would be sustained.
    Appeal from a judgment of the superior court of Milwaukee county: Eeank M. Eish, Judge.
    
      Affirmed.
    
    The plaintiff, Maoe, recovered a judgment against the defendant Cottrell, for $1,410.05, in the superior court of Milwaukee county, September 28, 1894, and an execution was issued on the judgment, and, the usual affidavit having been made on behalf of the plaintiff, the defendant, Soberts, was summoned as garnishee. He filed within the time limited his general answer, as provided in sec. 2759, R. S., denying his liability. The plaintiff elected to take issue on his answer, and this issue was tried before the court without a jury. The plaintiff read in evidence .the examination of the garnishee, taken pursuant to sec. 4096, R. S., and called said garnishee, who, being sworn, was examined as a witness on said trial. The testimony extended to numerous details in relation, to somewhat extended transactions between the garnishee and the-judgment debtor, Cottrell.
    It appeared from the evidence that the parties had dealings together to a considerable extent, and that there was-a settlement between them in March, 1894, at which time Cottrell, the judgment debtor, assigned and turned over to Roberts, the garnishee, mortgages the face value of which exceeded $11,000, that about that sum was actually due on them, and a schedule or list of said mortgages was filed in, the testimony; that he claimed to have acquired them in satisfaction of an indebtedness by said Cottrell, the judgment debtor, to him, the said Roberts, and that Roberts had been doing business for Cottrell for a considerable time; and that at the same time he acquired from him $8,500 in stock in the Watertown Land Company, but it does not appear to-have been of any particular value. It appeared from the testimony of Roberts that he kept an account, and had checks and other papers, from which he could ascertain the amount of said alleged indebtedness of Cottrell to him. He testified that there was a balance of $5,713.74 due on his books, and that none of it had been paid in any other way except, on this settlement. Again, he testified that Cottrell owed him $13,418.76 at the time they made the settlement; that he had had the mortgages so assigned and turned over to him in his possession three years, or a part of them; that he loaned him money, and kept them as security, but did not have any assignment; that from all the property he received from him on this settlement he would not realize any more than the amount Cottrell owed him, and that he would-not give over $10,000 for the entire property transferred to him for it; that he had collected the interest for a considerable time on these mortgages as it became due from time to time, and the testimony tended to show that the amount was about $2,600 a year; and that he had realized other-sums out of the property assigned. Again, he testified that the amount of loans he was handling for Cottrell was upwards of $20,000, and that he did not take any due-bill or receipt when he loaned him money, and did not make an entry of it in his books. He could not tell what he loaned him by the stub books. He testified that he had not his books of account in court, although he knew that the bona fides of the assignment from Cottrell to him was the vital point in the case; that they were in his office at Witten-berg, Shawano county; that he had no abstract of his books or statement of the account between Cottrell and himself there, had only the balance, and no way of telling the items of that account at the present time other than the stub check books; that he always rendered a statement at the end of each year, and sometimes one or two a year.
    The testimony in regard to the indebtedness of Cottrell to Roberts was exceedingly vague and indefinite, and his answers given upon his examination were evasive and contradictory. He was requested to produce the papers, documents, memoranda, and books referred to, but did not do so. The defendant offered no testimony.
    The court found: (1) The rendition of the judgment against Cottrell as above stated, and the issuing of an execution thereon September 28,1894. (2) That it was in the hands of the sheriff when the garnishee proceeding was commenced, which was served September 29, 1894 (3) That after the rendition and docketing of said judgment, and on or about the 10th day of March, 1894, the said garnishee, knowing that the said Cottrell was indebted unto said plaintiff, and with the intent to cheat and defraud the plaintiff out of the collection of the said judgment, obtained from the said Cot-trell, without due and sufficient consideration therefor, conveyances of notes, mortgages^ contracts, and corporate stock largely exceeding in value the amount of the claimed consideration paid therefor; and that the said Roberts claimed to have paid for the transfer of the said property to him by canceling certain indebtedness claimed to be due from tbe said Cottrell to bim, amounting to tbe sum of $11,000; that tbe property aforesaid wbicb be received from tbe said Cot-trell exceeded in value tbe sum of $16,000, and tbe said Roberts bad collected of said mortgages, and sold from said land, and received upon payment tberefor a sum of money largely in excess of tbe amount of plaintiff’s claim in this action, and bad in bis possession tbe balance of tbe said property received from tbe said Cottrell as aforesaid, wbicb is all tbe property that tbe said Cottrell bad in tbe state of Wisconsin. (4) That'the said Roberts was acting as agent for tbe said Cottrell for tbe loaning of bis money and collection of tbe principal and interest thereof, and be bad not satisfactorily shown the payment of tbe said sum of $11,000, or any other sum, or accounted for tbe property aforesaid that came into bis bands. (5) That at tbe time of tbe service of tbe garnishee summons herein tbe said Roberts held in bis possession property, money, credits, and effects of the said defendant Cottrell by and under a conveyance or conveyances void as to tbe creditors of tbe said defendant Cottrell, and largely in excess of tbe amount of tbe plaintiff’s claim in this action; that tbe conveyance or conveyances and transfers of tbe notes, mortgages, corporate stock, and contracts made by tbe said defendant to tbe said garnishee are void as to tbe creditors of tbe defendant, and particularly as to tbe plaintiff, and that be is entitled to a judgment against tbe defendant Roberts for $1,410.05, with interest from January 27, 1894, with costs.
    Judgment was perfected on said findings, from wbicb Roberts appealed. He alleged general exceptions to tbe findings of fact, and it was contended, among other things, that said judgment and execution bad not been formally put in evidence, and that tbe plaintiff was in no position to attack as fraudulent the transfers of property by the defendant Cot-trell to tbe garnishee.
    
      For the appellant there was a brief by Jones & Lewis, and oral argument by D. Lloyd Jones and P. G. Lewis.
    
    They •contended that, in order to be entitled to attack a sale by his debtor to the garnishee, the plaintiff must show that he is a creditor. Jones v. LaTce, 2 Wis. 210; Eaton v. White, id. 292; Clerriens v. Clemens, 28 id. 637; Davy v. Kelley, 66 id. 452; North Hudson Mut. B. & L. Asso. v. Childs, 86 id. 292; MeCowrt v. Bond, 64 id. 596; Healey v. Butler, 66 id. 9; Norton v. Kearney, 10 id. 443. The judgment debtor had a perfect right to pay his debt to the garnishee by a transfer of property without regard to his other creditors. Er-daTZ v. Atwood, 79 Wis. 1; Anstedt v. Bentley, 61 id. 629; Carrier v. Ltewey, 62 id. .552; Briekley v. Walker, 68 id. 563; Landauer v. Yietor, 69 id. 434; Stevens v. Breen, 75 id. 595.
    
      W. J. Turner, for the respondent.
   Pinhey, J.

1. The point made by the appellant, the garnishee, that the respondent was in no position to attack as fraudulent the transfer of property from Cottrell to him, is not well taken. The action brought against Cottrell, and Roberts as garnishee, was a proceeding in aid of the execution. It was a secondary or supplemental action. By sec. 2753, E. S., such an action may be commenced “ upon judgment or decree at any time after issuance in any case of an execution against property, and before the time when it is returnable,” upon an affidavit as prescribed in that section; and “ any number of garnishees may be embraced in the same .affidavit and summons hereinafter provided for; but if a joint liability be claimed against any, it shall be stated in such affidavit, and the garnishees named as jointly liable shall be deemed jointly proceeded against.” And sec. 2754, providing for the garnishee summons, shows that the action is to be entitled as one between the original plaintiff and defendant and the garnishee, and is substantially a continuance of the original action with a view to enforce the decree or judgment. The court takes judicial notice of the proceeding and judgment before it in the original action. It-was not necessary, therefore, to formally offer the execution and judgment in evidence on the trial against the garnishee, any more than it would be to put in evidence the defendant’s answer in an ordinary action in order to get the benefit of any admissions it contained. The entire record was doubtless, as is usual, actually before the court and in use by the attorneys on the trial. In any view that may be taken of the matter, the objection is exceedingly technical that it was necessary to offer in evidence the record. , It was, in law and doubtless in fact, before the court. Had any suggestion been made as to the necessity or propriety of offering the record and execution in evidence, they would have doubtless been offered. The objection comes too late. The defendant should have raised it in the court below at. some stage of the trial. It does not appear to have been made at the trial in any form. It cannot be taken for the first time in this court on appeal. No allusion is made to it in the bill of exceptions, and the finding of the court, in this state of the record, as to the fact of the judgment and execution, cannot be overturned on a mere suggestion made for the first time on appeal. It would be trifling with legal proceedings to now give any effect to the objection.

2. The remaining questions are 'questions of fact, in respect, to which the trial court, who saw the garnishee, who was the only witness examined, and heard him testify, had peculiar advantages for determining the credibility of his testimony which this court cannot possess. The testimony of Cottrell was not produced. The general effect of the evidence tended, to show that, as against the plaintiff, the transfer in question was a dishonest and fraudulent transaction. The garnishee knew that Cottrell was indebted to the plaintiff, and he testified that Cottrell had applied to him to get money to pay him. It is uncertain, from the evidence of the garnishee,. whether the property was worth $6,000, $11,000, $16,000, or $20,000; and his evidence as to the "bona fides of his debt against Cottrell, in satisfaction of which he claims he took the property assigned to him, is uncertain and calculated to beget .a want of confidence in his statements. It appears that he got by this transaction .all the property that Cottrell had in the state; and as soon as he concluded his settlement with Cottrell, which he says he had, and got the assignment, the latter left the state, and has not since returned. The •defendánt had the means, it appears, from books and papers in his control, to clear up any doubts that arose in relation to the bona fides of the transaction; and, although called on to produce them, he did not do so, but when the trial occurred he had left them, it appears, in his office at Wittenberg, some twenty miles distant. In view of the facts and circumstances as they appear from the record, we do not feel justified in reversing the finding of the trial court, and accordingly affirm the judgment appealed from.

By the Qowrt.— The judgment of the superior court of Milwaukee county is affirmed.  