Geilinger v. Philippi

The schedule of his assets showed this entry therein by Green: 'The house in which I reside on St. Charles street, and the furniture therein, is the individual property of my wife, and I have no claim thereto.' From the proces verbal of the meeting of the creditors, it appeared that Philippi was unanimously elected syndic, and letters issued to him accordingly; that 19 out of 27 local creditors of Green & Co. appeared and took part in the proceedings, accepted the surrender of property made by the insolvent, and voted to grant him a full discharge; and that the court appointed an attorney to represent the absent creditors, who declared that he had taken full cognizance of the meeting. The deed was dated May 19, 1882, and purported to grant, bargain, sell, assign, convey, transfer, and deliver with full warranty to Mrs. Green, wife of Gilbert H. Green, 'by whom she is herein assisted and authorized,' the property therein described. The notes for the deferred payments were signed by her, but it did not appear in the deed that the purchase price was paid for with the paraphernal or separate estate of Mrs. Green.

Upon the trial a bill of exceptions was taken, which states that Geilinger & Blum and the Bank in Winterthur 'placed Gilbert H. Green upon the witness stand, and offered to prove by the said Gilbert H. Green that in making the surrender of his property, as set forth in the record No. 19,734, division E, civil district court, referred to in the statement of facts in this cause, he did not intend to include in that surrender the property seized in this cause, for the reason that he was informed and advised by his counsel that the said property was the property of his wife, and was not liable for his debts or covered by the said surrender; to the introduction of which testimony the said Caesar Philippi, syndic, then and there objected, on the ground that the said testimony was irrelevant, and that Green's intention in making his surrender would not affect the issue in this cause, which objections the court sustained, and refused to allow said testimony to be adduced. To which ruling Geilinger & Blum and the Bank in Winterthur then and there excepted.' To the judgment rendered as above, the pending writ of error was sued out from this court. The errors assigned are: (1) That the court erred in refusing plaintiffs in error the right to prove the facts set forth in the bill of exceptions herein filed, (2) that the court erred in concluding, as a matter of law, that Gilbert H. Green had surrendered the property seized in this cause under and by virtue of the insolvent proceedings No. 19,734 of the civil district court, (3) that the court erred in ordering the release of the property herein sued for.

E. H. Farrar, B. F. Jonas, and E. B. Kruttschnitt, for plaintiffs in error.

[Argument of Counsel from pages 250-252 intentionally omitted]

T. J. Semmes and Alfred Goldth waite, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.