106 Wis. 332 | Wis. | 1900
It appears from the record that prior to July, 1899, the defendant Wittenberg Yeneer & Panel Company was duly incorporated and organized under the laws of this state; that July 23, 1899, its factory was destroyed by fire; that the same was insured for upwards of $12,000, and that all of such insurance "was put up as collateral secu
In denying such motion the court filed a written opinion, which, under the title of the cause, is as follows: “ Motion under section 1694a, N. S., to dissolve an attachment levied within ten days before the making of a voluntary assignment. The controlling question upon this motion is whether the existence of a federal bankruptcy law in full force and effect suspends the operation of chapter 80 of the statutes of this state, which chapter includes the section above men-1 tioned. It seems to be well settled that the exercise by
We are asked to dismiss the appeal because the clerk’s certificate does not “ show that the papers returned are the originals, or copies used on the hearing of the motion for the order from which the appeal is taken.” It does show,. however, that the papers annexed “ are the original and all the papers and pleadings which have been filed ” in his “ office in the above-entitled cause, except pages 1 to 13, inclusive, of the record, which are copies of the originals; ” and the clerk also certifies that the thirteen pages have been carefully compared with the original record on file in his “ office, and that the same are true and correct copies of the originals, and of the whole thereof.” Such certificates and the order to show cause, mentioned in the statement, and the recitals in the order appealed from, also mentioned therein, would seem to be sufficient to identify the records and papers upon which the order was based. Circuit Court Rule XI.
Besides, we are not called upon to determine whether the trial court should have dissolved the attachment upon the merits, since, as indicated in the statement, that court denied the motion solely on the ground that it had no power to determine the question. This court has held that: “ Where the trial court has power, in its discretion, to do an act, a
As indicated, the trial court held that the passage of the federal bankrupt law, July 1,1898, ipso facto suspended the operation of all state insolvency laws, including sec. 1694®, Stats. 1898, wherein it is provided that if an insolvent debtor make a voluntary assignment for the benefit of his creditors within ten days after his property has been “ attached or levied upon by virtue of any process in favor of a creditor or a garnishment is made against such debtor, ... all such attachments, levies, garnishments or other process shall be dissolved and the property attached or levied upon shall be turned over to such assignee or receiver.” The effect of the passage of such federal bankrupt law upon such state laws is, manifestly, a federal question, which may be ultimately determined by the supreme court of the United States. Until such determination by that court we must be governed by the import of its former decisions, and such aid as we may find in the decisions of other courts, and the law and reasons applicable to the case. After very able arguments and great deliberation, it was determined by the supreme court of the United States more than seventy years ago, that: “The power of Congress £to establish uniform laws on the subject of bankruptcies throughout the United States5 does not exclude the right of the states to legislate on the same subject, except when the power is actually exercised by Congress and the state laws conflict with those of Congress.” Ogden v. Saunders, 12 Wheat. 213. See, also, Tua v. Carriere, 117 U. S. 201; Cole v. Canningham, 133
Notwithstanding the provision of the Revised Statutes of the United States giving to the federal courts exclusive jurisdiction : “ 6. Of all matters and proceedings in bankruptcy ” (sec. Ill), yet it ivas held, pending the bankrupt act of 1861, that the assignee in bankruptcy might sue in the state courts to recover the assets of the bankrupt; that although exclusive jurisdiction in such cases might be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the state courts, having competent jurisdiction in other respects, may be resorted to; and that such jurisdiction of a state court is derived from its own constitution and laws. Claffin v. Houseman, 93 U. S. 130. To the same effect is McKenna v. Simpson, 129 U. S. 506, where it was held that “ a state court has jurisdiction of an action brought by an assignee in bankruptcy to set aside, as made to defraud creditors, conveyances made by the bankrupt before the bankruptcy.” These cases may be in conflict with some things said by this court in Brigham v. Claflin, 31 Wis. 607; Bromley v. Goodrich, 40 Wis. 131. The case in the supreme court of the United States peculiarly applicable here is Boese v. King, 108 U. S. 319, where.it was held that: “ A general assignment of a debtor’s property, made for the benefit of creditors, purporting to be made under a state insolvent law which had, at the time of the assignment, been suspended in whole or in part by a bankrupt act, may never-
In the case at bar there is nothing in the record to indicate that any proceeding in bankruptcy has ever been commenced, much less pending. Of course, as against such proceedings under the bankrupt act, properly instituted, the assignee for the benefit of creditors and the state courts would readily yield to the paramount jurisdiction of the bankrupt court. Blake, Moffitt & Towne v. Francis-Valentine Co. 89 Fed. Rep. 691; In re Bruss-Ritter Co. 90 Fed. Rep. 651; In re Sievers, 91 Fed. Rep. 366; In re Curtis, 91 Fed. Rep. 737; In re Smith, 92 Fed. Rep. 135; In re John A. Etheridge F. Co. 92 Fed. Rep. 329; In re Pittlekow, 92 Fed. Rep. 901; In re Curtis, 94 Fed. Rep. 630; In re Richard, 94 Fed. Rep. 633. As held in the federal court in Massachusetts ; “ A general assignment for the benefit of creditors, though an act of bankruptcy and liable to be avoided by the subsequent adjudication of the assignor as a bankrupt, is not void originally, but only voidable. It remains valid until such adjudication is made.” In re Romanow, 92 Fed. Rep. 510. To the same effect, In re Ogles, 93 Fed. Rep. 426; In re Wright, 95 Fed. Rep. 807; Simonson v. Sinsheimer, 95 Fed.
Perhaps the learned trial judge was induced to decide as he did by reason of certain expressions found in some of the decisions of this court from which it might be inferred that the whole of ch. 80, Stats. 1898, is to be regarded as an insolvent law. Holton v. Burton, 78 Wis. 326; Second Ward S. Bank v. Schranck, 91 Wis. 258. Such was not the intention. What is thus stated in those cases must be regarded as relating to the insolvency features of that statute. The right to make such voluntary assignment for the benefit of creditors, when not forbidden by statute, is inherent in a corporation as well as an individual, and existed independent of the insolvency features of that chapter. Vanderpool v. Gorman, 140 N. Y. 563; Garden City B. & T. Co. v. Geilfuss, 86 Wis. 612.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.