Clark v. Bergenthal, 52 Wis. 103

Clark v. Bergenthal

52 Wis. 103 | Wis. | 1881

Cassoday, J.

The power to administer law and the power to administer equity were formerly vested in different tribunals, each having separate and independent jurisdiction. Under that system, when a judgment was recovered in a court of law, and all efforts to collect it by direct methods had failed, such court was powerless to compel discovery of property, money and'things in action secretly held in trust for the judgment debtor. To reach such property, money or things in *107action, it became necessary to file a bill in equity in.another court of separate and independent jurisdiction. Under our system, the two jurisdictions are merged in the same court, and mere forms of action are abolished; but in substance they nevertheless exist, and are necessarily recognized by courts and lawyers. If the right to file such bill of discovery, or creditor’s bill, was lost by the adoption of the code in 1856, yet it was fully restored by chapter 303, Laws of 1860, now embodied in section 3029, R. S. Williams v. Sexton, 19 Wis., 42; Winslow v. Dousman, 18 Wis., 456; Gates v. Boomer, 17 Wis., 455. Such creditor’s bill can, of course, be brought in the same court where the judgment, which is the basis of the action, was rendered, and the execution returned unsatisfied, or in any other having jurisdiction. In addition to such remedy, the statute gives another remedy more summary and direct, and in many cases just as effectual.

Section 3030, R. S., among other things, provides that, “when an execution against property of the judgment debtor, . . . issued to the sheriff of the county where he resides, . . . is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the court, or a county judge or court commissioner of the county to which the execution was issued, requiring such judgment debtor to appear before him and answer concerning his property, at a time and place specified in the order, within the oounty to which the execution was issued.” This remedy is, of course, purely statutory. It was given by the code adopted in 1856, and was intended as a substitute for a creditor’s bill in chancery under the old practice, and abolished the same, until restored as stated. In re Remington, 7 Wis., 643; Graham v. Railroad, 10 Wis., 459; Seymour v. Briggs, 11 Wis., 196; Second Ward Bank v. Upman, 12 Wis., 499. But in this substituted remedy, like the old or present creditor’s bill, it became absolutely essential, in order to give a circuit or county judge or court commis*108sioner jurisdiction of tbis proceeding, that the judgment creditor should have in good faith issued his execution, and that the same should be returned unsatisfied by the officer, who should make all reasonable and diligent search for real and personal property, not exempt from sale, upon which to levy. In re Remington, 7 Wis., 651.

Section 3036, R. S., provides that, “ before appointing any receiver, the judge shall ascertain, if practicable, by oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if there be any, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to such receivership, and no more than one such receiver shall be appointed.”

Section 2815, R. S., as amended, provides that “ where these statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session; where these statutes authorize an order or proceeding to be made or taken by the presiding judge, or by the circuit judge, using such words of designation, no county judge or court commissioner can act. Except as so provided, or otherwise expressly directed in particular instances, a county judge or court commissioner may exercise within his county the powers, and shall be subject to the restrictions thereon, of a circuit judge at chambers, according to existing practice and these statutes, in all actions or proceedings in courts of record.” The word “judge,” as used in section 3036, R. S., therefore, must be construed to include “county judge or court commissioner.” This construction is in harmony with the provisions of sections 2434 and 2435. Under these sections it was held, in Kellogg v. Coller, 47 Wis., 650, that “ the statute contemplates that different proceedings may be pending at the same time, hut requires creditors prosecuting prior proceedings to be notified of the pendency of junior proceedings, and that but one receiver shall be appointed.”

*109In the case last cited, Lyon, J., said that “ a summary proceeding supplementary to execution under the statute, instituted after the return of an execution unsatisfied, is a substitute for a creditor’s bill in equity, and is governed by the same rules of law in respect to the rights and priorities of parties affected by. the proceeding, which control the equitable action. In the. creditor’s suit, the general rule was, that the creditor who, after filing his bill, obtained the first service of the subpoena upon the judgment debtor, thereby obtained a prior lien upon the equitable assets of such debtor.” Pages 655, 656.

These sections of the statute clearly contemplate that, where a judgment is rendered in one county, and subsequently a transcript is filed and an execution is issued thereon to the sheriff of some other perhaps distant county from the first, where the judgment debtor then resides, and such execution is returned unsatisfied, the judgment creditor, at any time after such return is made, is entitled to institute supplementary proceedings before a judge or court commissioner of the county to which the execution was so issued. In other words, whatever be the county or circuit in which the judgment was rendered, the supplementary proceedings, under the sections quoted, are to be instituted and had in the county where the debtor resides at the time. This being the policy of the statute, it should not be frustrated by construction. If the debtor in this case, after the rendition of the judgment,'had moved to the most remote county in the state, and if, after transcript there filed, execution had been issued to the sheriff of such county and returned unsatisfied, and supplementary proceedings instituted therein, it would not, we presume, be claimed that the circuit court of Milwaukee county could immediately thereafter assume jurisdiction of such proceedings, and thus compel the debtor to travel hundreds of miles to answer before the court concerning his property.

The very object of authorizing court commissioners and county judges to act in such matters at all, was to prevent *110such abuses. If, in the ease supposed, the proceedings could not be thus summarily interrupted, then, for the same reasons, we think the proceedings before Commissioner Ryan could not be interrupted by a simple transfer of the papers, as in the present case. This view is strengthened by the fact that the statutes expressly provide that orders made by a court commissioner in such cases “ may be reviewed by the court.” Section 2815, R. S. So sections 2434 and 2435, R. S., provide that such orders made by a court commissioner or county judge shall be “subject to review in all cases by the circuit court, as provided by law and the rules and practice of the court.” It is the order or final determination of the commissioner or county judge which is to be thus “reviewed.” Of course the word “ review ” precludes a mere continuation without reexamination. It implies just what the word imports, and is too well understood in legal parlance to require definition. No authority has been cited in conflict with this view of the case taken, and the practice indicated would seem to be much the safer, and tend to much less confusion and annoyance.

By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.