70 Wis. 508 | Wis. | 1888
The plaintiff claims title and the right to the possession of the goods in controversy by virtue of the assignment made to him by Wolf & Liebig for the benefit of their creditors. The validity of that assignment is, therefore, the first question to be considered. It is insisted that the assignment was not lawfully executed, and was void as against the creditors of the assignors, for several reasons. It seems to us that at least one of these objections must be sustained.
Sec. 1696, R. S., requires the assignee, in the presence of the officer taking the bond, before delivering to such officer a copy of the assignment I'or the purposes specified in the preceding section, to indorse in writing on such copjv his consent to take upon himself the faithful discharge of the trusts specified in the assignment, and that the copy so indorsed by him is a true and correct copy of the original; “ and such officer shall indorse thereon his certificate that the same is a true copy of the original, and of the whole thereof, and that the assignee named in such original assignment did in his presence make the indorsement thereon as required by this section.” The officer authorized to approve the bond and receive the copy of the assignment and indorse the certificate thereon is the county judge or a court commissioner of the proper county; and such judge or court commissioner files these instruments in the office of the clerk of the circuit court for the inspection of all parties interested. In this case, the certificate was made by a notary public, in whose presence the assignee indorsed
The learned counsel for the plaintiff says the interests of the creditors of the assignor'were in no wise jeopardized because the consent of the assignee was given before, and the certificate was made by, a notary public. But this is no more than saying that things which the law makes it necessary to be done for a lawful execution of an assignmeot may be dispensed with, or may be done in a different manner from the way prescribed. The object of having the in-dorsement of the assignee in the presence of the county judge or court commissioner is to secure such action in good faith, under official sanction. Fuhrman v. Jones, 68 Wis. 497. But it is sufficient to say, in answer to this position of counsel, that the legislature has seen fit to prescribe that the assignee shall, in the presence of the county judge
It results from these views that the assignment under which the plaintiff made title to the goods was invalid as to the creditors of the assignors. The plaintiff, however, took possession of the goods under the writ of replevin, and retained possession of the same. The sheriff claimed the right to the possession of the goods mentioned under two certain attachments,— one in favor of Morawitz & Brandt, for die sum of $324.93; and one in favor of Friend Bros.’ Cloth ng Co., for the sum of $1,037 due or to become due, both actions being against the assignors. The fact appears or was proved on the trial that the assignors traversed the affidavits for each of the attachments under which the sheriff claimed the goods, and the traverse in the Morawitz Case [Morawitz v. Wolf, post, p. 515] was tried and sustained, and the attachment dissolved. The sheriff’s title, therefore, as to that attachment, failed or was destroyed. The statute requires that on the dissolution of the attachment the property attached should be forthwith delivered up to the defendant. Sec. 2746, R. S. We have held in the Morawitz Case, supra (decided at the same time as this), that the statutory provision is imperative, and that the prescribed order must be made, even though it was inoperative. The order which the court below did in fact make, was that the prop
In Keith v. Armstrong, 65 Wis. 225, the defendant traversed the affidavit for an attachment Avhich Avas levied upon property that he subsequently assigned for the benefit of creditors. The traverse was sustained, and the attachment dissolved. The point was made that, as the defendant in the attachment had assigned or parted Avith his interest in the property, he ought not to be allowed to traverse the affidavit for the attachment. But this objection was overruled, the court holding, for reasons given, that though the statute required the attached property to be restored to the defendant, yet the assignee might avail himself of the order, and take the property conveyed to him by the assignment. The court would have no difficulty, in a proper proceeding, in giving the assignee the benefit of the assigned property as against the assignors. So in the case which we have supposed above, the sheriff could exonerate himself from all liability by shoAving that the goods which he Avas ordered to deliver to the defendants in the attachment Avere actually in the possession of their assignee. This, as we
The sheriff had a judgment for the return of all the property mentioned in the complaint, which the court found to be of the value of $2,165.60. This largely exceeded the special property of the sh< riff under the Friend attachment, which had not been dissolved. The rule is, where property is replevied from a sheriff holding the same under an attachment or execution and having no other interest in it than that of the creditor whom he represents, if the defendant recovers, and the value of the property is greater than the amount claimed on the attachment or execution, then the amount of the officer’s recovery is limited to the amount of the attachment or execution, and interest and costs. Booth v. Ableman, 20 Wis. 21; Smith v. Phillips, 47 Wis. 202. Under this rule there must be a reversal of the judgment, and the cause must be remanded to the circuit court for the entry of a judgment in conformity with this opinion.
By the Court.— Ordered accordingly.