Allen v. Beekman: Miller's Appeal

| Wis. | Jan 15, 1877

Lead Opinion

Lyoít, J.

This appeal is from an order of tbe circuit court denying a motion to set aside and vacate a former order awarding issues to determine tbe proper disposition to be made of certain money collected on an execution issued in tbe above cause and paid into court by tbe sheriff. Tbe order awarding sucb issues is as follows:

“Tbe order to show cause why an issue should not be formed as to who is or are entitled to tbe money deposited in court, etc., having come to be heard: on hearing Hon. Levi Hubbell on behalf of the plaintiff, and Edward Sanderson and A. W. Hall, and Messrs. Dixon, Hooker, Wegg & Noyes, on behalf of George W. Cady, Horace W. Cady and Woodward Aul, and the Finley Shoe & Leather Company, and the attorneys of WilUazm Miller hereinafter named having had notice of this application: It is ordered by this court that the following issues be and are hereby formed between the parties claiming to be interested in said moneys, viz.:

“ 1st. Is the judgment recovered in this action fraudulent or void as against the creditors of the defendant, C. Reek-man?

“ 2d. Who of the several parties interested, including Wm. Miller, who holds an assignment of the said judgment, as appears by the record, is or are entitled to the said moneys?

“ And it is further ordered that the said issues be tried according to the rules and practice of this court, and that testimony be taken as provided by law and the practice of the court in similar issues; and that the said issues stand for trial at tbe next term of this court.”

The money collected on the execution was paid into court by the sheriff pursuant to tbe decision of tbis court in McDonald, Sheriff, v. Allen, 37 Wis., 108" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/mcdonald-v-allen-6601703?utm_source=webapp" opinion_id="6601703">37 Wis., 108, in which case we had under consideration the question of practice as to the proper mode of determining who were entitled to the money. The order awarding the issues is in accordance with the practice there indicated. It gives all parties interested in the disposition of tbe money an opportunity to litigate their respective claims thereto by due judicial procedure, and fully protects the rights of each of them. It is just such an order as the court ought to have made, and should not be disturbed unless there was some error or irregularity prejudicial to the appellant in the proceedings preliminary thereto.

1. It is claimed that Miller, the appellant and assignee of the judgment in the action, had no notice of the motion for an order awarding issues, and hence, that he should not be bound by it. The record does not sustain the claim. The order recites that he had notice of the motion, or, what is the same thing, that his attorneys had such notice; and neither he nor his attorneys have seen fit to deny the truth of the recital. We must regard the fact that such notice was given as established by the record before us. And, indeed, without the recital, probably we should be bound to presume, in favor of the regularity of the order, that legal notice of the motion was given to the appellant — the contrary not appearing.

2. The order to show cause why issues should not be awarded was made returnable August 4, 1875, and the order awarding the issues bears date August 23,1875. The motion papers show that the court was not in session on August 4th. It is claimed on behalf of the appellant, that the proceeding thereby abated, and that a new notice was necessary before the motion could properly be heard. This position is answered and overruled in Platt v. Robinson, 10 Wis., 128" court="Wis." date_filed="1859-12-14" href="https://app.midpage.ai/document/platt-v-robinson-6597939?utm_source=webapp" opinion_id="6597939">10 Wis., 128, where it is held that, “'when causes over which the moving party has no control, intervene between the time of the giving of notice of a motion and the time of hearing, which render it impossible dor him to proceed at the time fixed, and of which causes, such as the adjournment of the court in the present instance, the opposite party is bound equally with him to take notice, the notice already given ought to be regarded as sufficient to enable him to proceed under it at the next motion day when it can be heard, and compel the opposite party, if he desires to oppose it, to be present at snob day. Sucb, we believe, has been the usual understanding and practice in the circuit court; and there appears to be no hardship or injustice in it.” Per DixoN, C. J., p. 131.

3. The remaining errors assigned seem to relate to the proceedings subsequent to the order awarding issues. Such proceedings cannot be reviewed on this appeal. If the circuit court has tried the issues and distributed the money, an appeal from the order of distribution is the proper mode to obtain such review by this court. Finding no infirmity in the order awarding issues, we must hold that the court properly denied the motion to vacate it.

By the Court.— Order affirmed.

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Rehearing

On a motion for a rehearing, appellant’s counsel contended, 1. That to give the court below jurisdiction to make the order awarding issues, as against the appellant, two things were necessary: (1) The order to show cause should have named the appellant as a party; but there is no pretense that he is in any way named in such order. (2) It must have appeared to the court when the sitbseguent order was made, that the order to show cause had been served upon appellant’s counsel; but the record contains no proof of such service, and the recital in the subsequent order itself that their attorneys had “ had notice of this application,” is no proof of such service. 2. That since feigned issues are abolished by the statute (N. S., ch. 122, sec. 11), and every action is required to be prosecuted “ in the name of the real party in interest ” (sec. 12), the controversy between George W. Gady and other claimants of the moneys in the sheriff’s hands, on the one side, and the appellant, as assignee of the judgment, on the other, should have been by an action in the name of the former against the latter.

The following opinion was filed, upon the motion: .

Pee CueiaM. We are satisfied that this case was correctly decided on tbe grounds stated in tbe opinion. Tbe decision may be sustained, however, on other grounds. 1. Aside from tbe recital in tbe order, tbe record shows that Messrs. Cottrill and Cary were retained by tbe appellant in April, 1875, as bis attorneys to collect tbe judgment against tbe defendant Beek-man in tbe principal action, and that such attorneys were afterwards duly served with- tbe order to show cause why issues should not be awarded.

2. The record on this appeal shows that tbe issues awarded were determined by tbe final order or judgment of tbe circuit court, long before this appeal was taken. If tbe proceedings be regarded as in tbe nature of an action between tbe claimants of the moneys paid into court by tbe sheriff, we have here an appeal from an interlocutory order, taken after final judgment. Such appeals are not allowed. American Buttonhole and Sewing Machine Co. v. Gurnee, 38 Wis., 533; Victor Sewing Machine Co. v. Heller, et al., 657.

3. If this is a summary proceeding after judgment in the action of Allen v. Beekman, the order appealed from is not appealable, because not final. Tay. Stats., 1635, § 11.

Perhaps tbe appeal should have been dismissed for tbe reason that tbe order is not appealable; but as an affirmance of tbe order leads to tbe same result, we do not care to disturb tbe decision already made.

Motion denied.