Dickerman v. Ahern

STURTEVANT, J.

The plaintiff brought a creditor’s bill against the defendants. They answered and a trial was had before the court sitting without a jury. The court made findings in favor of the plaintiff and from a judgment entered thereon the defendants have appealed.

The defendants made two points. They contend the evidence is insufficient to justify the decision and they contend that the bonds hereinafter mentioned were

in custodia legis

and therefore were exempt from attachment, garnishment, or levy. We will discuss these points in the order stated, but it is necessary to state some of the facts.

On October 22, 1923, a judgment was entered against William Ahern, one of these defendants, and in favor of this plaintiff. That judgment ivas for $3,349.61, costs, and interest. On December 4, 1923, $406.78 was credited thereon. Later such proceedings were had that the creditor’s bill was filed. In the meantime William Ahern was arrested on process issued out of the United States district court. He was tried and convicted and took an appeal. Pending his appeal, an order was made that he be admitted to bail in the sum of $5,000. As bail on. appeal, the brother of William Ahern took to Joseph Connelly, who was acting as

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attorney for William Ahern, five one thousand dollar United States bonds, and Connelly deposited the bonds with the United States commissioner and took a receipt in his own name. By the creditor’s bill this plaintiff sought to obtain a decree subjecting said bonds to plaintiff’s claim after the said bond on appeal should have been exonerated.

In presenting their attack on the findings, the defendants claim there was no evidence that William Ahern was the owner of the bonds, but that all of the evidence was to the effect that the defendant Frank Gator was the owner of the bonds. The direct evidence given by the witnesses was as contended by the defendant; but the testimony of each witness was very inexact, inaccurate and equivocal. The brother of William Ahern, a most material witness, was not produced nor was his absence accounted for. There were many conflicts in the story as told by the defendants. We think it is clear that there is in the record substantial evidence supporting the findings.