85 Wis. 468 | Wis. | 1893
1. The contention that the affidavits used to obtain the orders for service of summons and complaint on the defendants James Gaynor and Witherwax, under S. & B. Ann. Stats, secs. 2639, 2640, are void because the respective affidavits used to obtain them do not describe any property of the defendant within the state or in which he had any interest tobe affected by the action, cannot be sustained. The case of ' Winner v. Fitzgerald, 19 Wis. 393, arose under sec. 10, ch. 124, R. S. 1858, when the grounds for making the order were required to appear wholly by affidavit. The present statute (S. & B. Ann. Stats, sec. 2640) provides that the application for the order' “ shall be based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist.” In Cummings v. Tabor, 61 Wis. 188, the change in the statute was considered, and it was held thatthe statute now requires the order to be based in part upon a verified complaint filed, and it does not expressly require that the affidavit which is to accompany the verified complaint shall show that a cause of action exists against the defendant. . . . It does not say, as the old statute did, that such fact must be made to appear by affidavit.” It is enough, within the statute and the rule established by this decision, that the applications were made upon a complaint duly verified, and on affidavits, together showing the facts required to exist. Voelz v. Voelz, 80 Wis. 507, 508. The rule thus laid down has not been departed from or modified' in any subsequent case. The failure to describe the property in question in the affidavits does not render the
2. It has been the law in this state from a very early period that debts due to a nonresident debtor from citizens of this state are subject to garnishee process at the suit of his creditor in the courts of this state, and that such debtor can be brought into such courts by publication of summons; and where the debt is claimed by another he need not be summoned at all, but, in order to conclude him, it would be necessary to give him timely notice of the proceeding and to tender him the defense of it. Adams v. Filer, 7 Wis. 306; Wilson v. Groelle, 83 Wis. 530. More recent provisions have been made for bringing in the adverse claimant as a party defendant, so that as to the different claimants the proceedings may assume the character of an action of inter-pleader, and for service of an order without the state, or by publication, if either is a nonresident. The proceedings are regarded as an action, and the court may adjudge the recovery of any indebtedness, the. conveyance, transfer, or delivery to the sheriff, or any officer appointed by the judgment, of any real estate or personal property disclosed or found liable to be applied to the plaintiff’s demand, or to pass title thereto, and. may by its order, when proper, direct the manner of making sale and of disposing of the proceeds or any money or other thing paid over or delivered to the clerk or officer (Baker v. Lancashire Ins. Co. 52 Wis. 193 ; Prentiss v. Danaher, 20 Wis. 311); and the garnishee may be enjoined from disposing of the debtor’s property (Almy v. Platt, 16 Wis. 169; Malley v. Altman, 14 Wis. 22); “and
But for the last-named provision, the indebtedness of the defendants Ilelmer and the Chapmans to the defendant James Gaynor could have been reached by process of garnishment, and applied to the satisfaction of the judgment against him, although a nonresident of the state, and although he had made a colorable or fraudulent transfer of the indebtedness to the defendant Witherwax, also a nonresident. For all such purposes, these debts would have been regarded as property in this, state and subject to the jurisdiction of its courts, although both Gay not’ and With-erwax were nonresidents. Such result would.not have been considered in conflict with the general rule that the situs .of personal property is for many purposes, such as taxation, succession, and distribution, regarded as having its locality at the domicile of the owner. By force of statute law, as' well as public policy declared thereby and in the decisions of the courts, the situs or place where these debts are considered to be with reference to jurisdiction of our courts over them for the purpose of subjecting them to the satisfaction of debts due to a resident of this state from a nonresident in order to protect, do justice to, and satisfy creditors resident here, is that of such resident debtor owing the same. The right to so reach and appropriate such debts for such purposes has been affirmed by numerous adjudications from the earliest period, and it is too late now to attempt to maintain the proposition that for all purposes the situs of debts so sought to be reached and applied is at the domicile of such nonresident. They are to be regarded,
The courts of this state can exercise jurisdiction only over persons and property within its territory, but it is familiar law that “through its tribunals it may subject
Had James Gaynor died domiciled in Illinois, the plaintiff, as his creditor, could have taken out administration in Wisconsin, by reason of Gaynor’s ownership of the debts and demands due from the defendants in this action, and enforced collection of his debt by that means, beyond the power of Gaynor’s personal representatives to prevent such result, for locality of personalty of a deceased confers local probate jurisdiction, without consideration as to his last, domicile, and debts due the deceased are deemed lonanota-bilia, i. e., personalty suitable for conferring local probate jurisdiction; and the rule is that simple contract debts constitute such where the debtor (not creditor) resides, and where they can be sued upon. So of any chose in action or money right. Schouler, Ex’rs, § 24; Attorney General v. Bouwens, 4 Mees. & W. 191; Owen v. Miller, 10 Ohio St. 136; Pinney v. McGregory, 102 Mass. 186; Clark v. Blackington, 110 Mass. 373. In Attorney General v. Bouwens, supra, it was held that, “ as bills of exchange and promissory notes do not alter the nature of simple contract debts, but are merely evidences of title, the debts .due on these instruments are assets where the debtors lived, and not where the instrument was found.” In Wilkins v. Ellett, 9 Wall. 740, 742, the court, recognizing the general rule as to the situs of personal property, recognizes also a limita
This action is founded upon the statute (sec. 3029, S. & B. Ann. Stats.) restoring actions in the nature of creditors’ suits, and providing that, “ whenever any execution against the property of any judgment debtor shall have been issued upon a judgment for the payment of money, and shall have been returned unsatisfied in whole or in part, the judgment creditor may commence an action against such judgment debtor and any other person to compel the discovery of any property or thing in action belonging to such judgment debtor, and of any property, money, or thing in action due or held in trust for him, and to prevent the transfer of- any such -property, money, or thing in action, or the payment or delivery thereof to such judgment debtor, except,” etc.; and the court has power by statute to appoint a receiver for such property, money, and things in action. Fraudulent grantees may be- joined as defendants, although they hold by separate conveyances and are. not connected -in interest with each other. Hamlin v. Wright, 23 Wis. 491. This action plainly extends to debts evidenced by bills and notes, and is more comprehensive and far-reaching than a proceeding by garnishment. When commenced by service of process, or notice, it operates as an equitable levy, and creates a lien in equity upon the effects of the judgment debtor, and every species of property belonging to him may be reached and applied to the satisfaction of his debts. Wait, Fraud. Conv. §§ 24, 33; Hadden v. Spader, 20 Johns. 554; Storm v. Waddell, 2 Sandf. Ch.
By fcbe injunction granted in this case against the defendants resident in Wisconsin the court in the most effective manner possible asserted its dominion and control over the indebtedness sought to be reached, and there can be no doubt, we think, that these debts were thus brought, by reason of this equitable levy, within the control'and dominion of the court for the purposes of this action, which was made effective by its final judgment appointing a receiver to collect them and apply the proceeds to the plaintiff’s judgment, with interest and costs. We are not aware of any well-considered case in conflict with this view. The debt or duty evidenced by notes, bonds, or bills is incorporeal and intangible, and exists in idea; or contemplation of law. The note, bond, or bill is the visible, tangible symbol of the debt or duty, which may be' transferred by ■assignment or indorsement thereof. Practically the note, bill, or bond represents money due and to come from the maker or party liable in one state to a party in another, who holds merely the evidence of the existence of the debt for it; and it seems but reasonable and' proper to hold that the situs of the debt for the purposes here in question is at the domicile of the debtor, where collection of it may be •enforced and the property pledged as security may be subjected and applied to its payment. In no other jurisdiction could the security be made available; and it seems clear that the subject matter to which the title or claims in question relate is the property, and not the notes, etc., which are merely evidence of its existence. Owen v. Miller, 10 Ohio St. 143. Loss of the notes' and mortgages, or destruction of them, does not effect or imply a loss or extinction of the, debts which they evidence. They are none the loss prop
A well-founded distinction would seem to exist between the right of the creditor to collect the debt which may have no locality independent of his own domicile, and the right as to creditors in this state seeking to reach and apply such debts to the payment of their debts against the payee thereof, in which case the situs of the debts for that purpose must be regarded as in Wisconsin, where the right can be made effective as against the persons owing such debts. The case of Owen v. Miller, 10 Ohio St. 136, 143, is directly in point, and fully sustains the plaintiff’s contention, as well as other authorities already referred to. The question upon which this action depends was not involved in the cases of Bryan v. University Pub. Co. 112 N. Y. 382, and Von Hesse v. Mackaye, 55 Hun, 365. Those cases more nearly resemble the proceeding under consideration in the case of Penier v. Hurlbut, 81 Wis. 24.
3. In Winner v. Fitzgerald, 19 Wis. 393, it was held that the officer signing the order of publication, where jurisdiction was based upon property within this state, must be able to see from the affidavit that it was such as is liable to be seized on attachment or execution; but this was said and must be considered in respect to a legal action in form in personam, such as that was, and designed to reach by execution on the judgment therein property which could be seized and sold under such process. Jarvis v. Barrett, 14 Wis. 591. It was not the intention of the court to so narrow the statute as to exclude from its operation and effect property within this state not the subject of such seizure and sale, and thus defeat in a considerable measure the equity jurisdiction plainly intended to be extended as to all property within the state, tangible or intangible, over which the judicial power of the state may be lawfully ex
4. The plaintiff having sued as trustee for others interested in the judgment, as well as in his own right, has also joined as a defendant Patrick Gaynor, the coplaintiff of the plaintiff’s assignor in its recovery, and who afterwards, claiming to be the owner of the entire judgment, collusively and without any consideration executed to his brother, James Gaynor, a satisfaction and discharge of the entire judgment, which is relied on to defeat this action. One purpose of this action is to have this discharge canceled and the respective rights and interests of the claimants in the judgment determined. It was competent for the plaintiff, as such assignee, to bring his action, and to' make such joinder of defendants, so that the discharge or release might be canceled if fraudulent and that the rights of the parties might' be ascertained and adjusted with a view to the proper application of the proceeds of the judgment when collected. The object of the action is not to overhaul, modify, or alter the judgment originally given, but to enforce it, and to settle the rights of Patrick Gaynor and the plaintiff, as the assignee of the judgment, as between themselves, and remove an obstacle wrongfully interposed
5. We have examined the evidence, and are satisfied that it sustains the findings of the circuit court. It would serve no useful purpose to protract this opinion with a discussion of the evidence. After a bitter and protracted litigation, a large judgment was recovered against the defendant James Gaynor. About that time, or soon after, he took up his residence in Chicago. He had made loans and investments in the county of Fond du Lac, and the debts in question were due him from parties residing there, in all to a large amount, very much in excess of what would be required to satisfy this judgment. He had a strong motive for attempting in the future, as he had in the past, to avoid payment of it, and had resorted to a device for that purpose which we have been compelled to hold fraudulent. We are satisfied from the evidence that the three mortgages affected by the judgment'in this action, and the debts due to James Gaynor from Moore and from Hughes, two of the defendants, were, not in fact assigned until after this action had been commenced and the injunction served upon the mortgagors Helmer and the Chapmans; that the transfers after-wards made were not real, but a mere device to defeat this action and defraud the plaintiff of his debt. The notes and mortgages had been a considerable time past due. It appears that no inquiry was made by Wither wax, the pre
6. The suppression of the deposition of James Gaynor ia assigned as error, but the deposition is not before us, as it was not included in the bill of exceptions. We cannot say that the appellants have been injured by the ruling of the court. Error must be established affirmatively and will not be presumed. The cases in this court to this effect are very numerous. We cannot presume that this deposition contained anything that would have justified a result different from that at which the circuit court arrived.
It follows from these views that the judgment of the circuit, court must be affirmed.
By the Court.— The judgment of the circuit court is affirmed. \