Bugbee v. Lombard

88 Wis. 271 | Wis. | 1894

PiNney, J.

The action having been brought by the plaintiff claiming title to the property in question under a transfer from the defendant in the judgment and alleged execution, and as the transfer to him was sought to be impeached as having been made in fraud of creditors, it became necessary for the officer, Lombard, as well as the creditor, the Twohy Mercantile Company, to show that they acted under a valid judgment and execution. An execution fair on its face is not, in such case, of itself sufficient to protect the officer. Bogert v. Phelps, 14 Wis. 88. The failure to show that the judgment against Wells in the circuit court for Washburn county had been docketed in the office of the clerk of the circuit court for Polk county, to which county the execution was issued, was a fatal defect in the defense of the defendants. Execution against the property of a judgment debtor, situated in a county other than that in which the judgment was rendered, can only be issued after the judgment has been docketed in such other county. R. S. sec. 2971. The only authority for issuing an execution to another county is conferred by this section, and until the judgment is docketed in such county no execution can be issued to the sheriff thereon. The defect is jurisdictional. Kentzler v. C., M. & St. P. R. Co. 47 Wis. 641; Smith v. Buck, 22 Wis. 577. The fact of the existence of the judgment in the county of its rendition, and that an execution had been issued to another county, does not afford any presumption of the existence of the independent and material fact essential to its validity; namely, that the judgment had been properly docketed in such county. 2 Best, Ev. § 300; U. S. v. Ross, 92 U. S. 281; Befay v. Wheeler, 84 Wis. 142. A mere recital of such docketing, if any there had been, in the execution would not supply the defect in a case such as this, where a judgment duly docketed is indispensable to the validity of the execution and to the defense relied on. An execution fair on its face merely would not be a protection or defense, any more than an execution fair on its face would justify, in a case like the present, a presumption that it was founded on a valid judgment; for the docketing of the judgment in the county to which the execution was issued was as indispensable to the defense as that there should be a judgment on which it was founded. It was error, therefore, to refuse to strike out the evidence of a levy od the property under the execution to the sheriff of Polk county, and to direct the verdict in question.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.