Lewis v. Chamberlain

Haynes, C. Appeal from an order dismissing proceedings supplementary to execution.

Lewis obtained judgment in the superior court of San Diego county against E. W. Morse and N. H. Conklin for a large sum of money, upon which execution was issued and returned nulla bona. He afterward filed in said [526]court an. affidavit, entitled in said cause, alleging the foregoing facts, and further alleging, on information and belief, that defendant Conklin, for the purpose of avoiding payment of said judgment, conveyed a large amount of property owned by him to Myra I. Conklin, his wife, and to Ralph L. Conklin, his son, who hold said property in their own names, and are thereby aiding and assisting him to shield it from sale to satisfy plaintiff’s said judgment. Like allegations were made of conveyances by defendant Morse to his wife, Mary C. Morse, and that she had conveyed part thereof to one Daniel Schuyler; and upon this affidavit he asked that an order be issued requiring the said judgment debtors and Mary 0. Morse, Myra I. Conklin, Ralph L. Conklin, and Daniel Schuyler “to appear and be examined as to the property of said Morse and Conklin, and for such other relief as is provided by law.”

Mrs. Conklin filed a written and verified answer to plaintiff’s affidavit, specifically denying that she held any property belonging to her husband in her name or possession or control, and alleged “ that she in good faith claims and owns in her own right all property now in her name or possession or under her control, or that was in her possession or name or control when any of the papers in this cause were served upon her.” She further denied that her husband had conveyed to her any property for the purpose charged in plaintiff’s affidavit, and alleged that she then was, and since 1867 had been, the wife of said N. H. Conklin, and prayed that she be no further examined therein, and that she be discharged with her costs. Mrs. Morse filed a similar verified answer.

Upon the hearing Mrs. Conklin was called by the plaintiff, and after testifying to her residence, that she was the wife of N. H. Conklin, and after giving the date and place of her marriage, was asked the following question : “ What property, if any, did you have at that time? ”

Whereupon her counsel interposed the following objection:

[527]