Bank of the North West v. Taylor

16 Wis. 609 | Wis. | 1863

By the Court,

Paine, J.

This suit was commenced against the appellant, who was a resident of this state, and against N. B. Taylor, who was a resident of Illinois. A writ of attachment was issued upon an affidavit, showing the non-residence of N. B. Taylor, and alleging that, the appellant had disposed, and was about to dispose of his property, with the intent to defraud his creditors. The appellant traversed the affidavit, and on the trial of that issue, the judge found in his favor.

A quantity of flour, wheat and some other personal property had been seized on the writ, and by the original return made by the sheriff, it was said to have been attached as the property of C. C. Taylor, the appellant. Had the return remained in this shape, the appellant would of course, have been entitled to an order for the property, after finding the traverse in his favor. But the return had been amended so as to say that the property had been attached as the property of both defendants. The judge therefore, though, finding that no ground for attachment existed against the appellant, ordered that the property remain in the custody of the sheriff, for the reason, that as it was attached also as the property of the non-resident defendant, it might still be held on that ground. In this we think he was right. We suppose that under the statute, where there are grounds for an attachment against one defendant, the writ may issue against him, though there may be no cause for issuing it against the others. And if this is so, his interest in any property, which he may own jointly with others, must be liable to seizure, j ust as it would be if the suit were against him alone. Thus, in this case, if the non-resident defendant had been the only defendant, and he had owned the property seized, jointly with the appellant, there can be no doubt that his interest might have been attached and the officer could retain possession of the property. Drake on Attachment, § 248 ; Remington vs. Cady, 10 Conn., 44; Reed vs. Howard, 2 Met., 36.

The case of Mersereau vs. Rorton, 15 Johns., 179, also sustains the same rule, though it was cited by the appellants counsel in support of the contrary doctrine.

They also refer to some cases which have held that in cases of partnership, their property .cannot cannot be seized on an execution or attachment against one partner so as to deprive the others of possession. There is a conflict of authorities on this point mentioned in Drake on attachments, at. the close of the section above cited. But it is unnecessary to examine it here, for the reason that those cases which hold that the partnership cannot be deprived of the possession in such cases, proceed upon a ground which fails entirely in a case of mere joint ownership. That is, as stated by the court in Newman vs. Bean, 1 Foster (N. H.), 98, that “ the interest of a partner is not the interest in the specific articles belonging to the firm, but only an interest in the surplus that may remain after the debts .of the firm shall have been paid.” For this reason, and because the other partners have a right to have an account, so as to determine whether the particular partner has any interest in the property seized on or not, those cases have held that they could not be deprived of the possession. But this reason fails entirely in a case of mere joint owners, which is all that is claimed here, so that those authorities are inapplicable.

There can be no doubt of the right of the court to allow the sheriff to amend his return, and after it was amended, it must for the purposes of this action, be taken as true.

It follows that although the issue on the affidavit was found for the appellant, his rights remained just as they would if no ground for attachment had been alleged against him, but it had beeu seized only on an attachment of the alleged interest of the non-resident.

The order is affirmed, with costs.