Cuda v. Giotto

DORAN, J. In this action, which is in the nature of a creditor’s suit to enforce the collection of a judgment obtained in a previous action, the plaintiff prevailed and defendants appeal.

[810]The record reveals that plaintiff herein filed an action in tort for damages on September 7, 1940, against defendants herein, Catherine Giotto, also known as Catherine Duce, et al., and recovered judgment in the sum of $1,250, no part of which has been paid except the sum of $28.78 which was recovered from a co-defendant. Said judgment was entered June 7, 1941, and is final. In the course of supplementary proceedings incident to plaintiff’s effort to collect the judgment, it developed that defendant Catherine Duee had transferred $4,300 from an account in the bank in her own name to an account in the name of her son John Duce, by Catherine Duee, guardian.

Plaintiff alleges the foregoing in substance and further alleges that the transfer of said fund from one bank account to the other was done for the purpose of hindering, delaying and defrauding plaintiff as a judgment creditor. The money was transferred September 7, 1940. There is no dispute as to the evidence; the dispute results from the inference and conclusion reached by the trial court from a consideration thereof.

No witnesses testified at the trial. It was agreed between counsel as to what the testimony of certain individuals would be if called as witnesses.

It appears from the record that defendant Catherine Giotto’s husband, Gaetano Duce, died in the year 1933; that before his death he and his wife Catherine (defendant) had opened a joint bank account which at the time of Mr. Duee’s death contained the $4,300 that now is the subject of this litigation; that according to the terms of the joint bank account upon the death of either the moneys in said account became the property of the survivor. Shortly after her husband’s death Mrs. Duce opened an account in the same bank in her own name to which account the monies in the joint account were transferred. Prom that date until the transfer to her son’s account, there were no withdrawals except as shown by certain checks for the funeral expenses and doctors bills incurred during Mr. Duce’s last illness. No money was ever withdrawn for the use and benefit of Mrs. Duce (defendant). Additional deposits covering the same period, i. e.: 1933 to 1940, aggregate about $530.

It also appears that shortly before Mr. Duce died he and his wife Catherine agreed that the money in the joint bank account should be preserved for the benefit of their son John. It further appears that when the action in tort, hereinbefore