66 Wis. 155 | Wis. | 1886
The respondents commenced an action against Rosenfeld and others to recover in an action upon contract; and in such action the appellant was summoned as garnishee, it being alleged in the affidavit for the garnishee summons that the appellant had property and money in his hands belonging to the defendants, Rosenfeld and
The circuit judge found as facts “ that Robert Rosenfeld was not authorized by his copartners to execute said assignment, and that the defendant Charles Haverland did not consent to or ratify the act of his copartner Robert Rosen-feld in making said assignment, until after the service of the garnishee process herein, which process was served June 24, 1885, and that said Charles Haverland was present at Unity, conducting his part of the business of the firm, at the time said assignment was made, but was not consulted by his partners in relation to the advisability of making it, and knew nothing of the execution until the morning of June 23, 1885;” and “that the affidavit of the nominal value of the assets of the assignors, which is required by section 1694 of the Revised Statutes for the year 1878 to be made by the assignors and one or more witnesses, was made by Robert Rosenfeld, one of the assignors only, and by E. H. Darling, the assignee, as the only witness.” These are the only facts material to the determination of the questions involved in this appeal.
As a matter of law the circuit judge found “ that the assignment is fraudulent and void in law, and conveys no title to the assignee.” The learned circuit judge does not state whether the assignment was void in law because made by
The evidence shows that the assignors were a- partnership, that the members of the firm were Robert Rosenfeld, E. D. Newman, and Charles ITaverland, and, at the time the assignment was made, they were doing business at Unity, in this state. The assignment was made by Robert Rosen-feld alone, at Wausau, in this state, on the 22d day of June, 1885. The other partners were at that time at their place of business, and knew nothing of the assignment until the 23d of Jane, at which time E. I). Newman assented to the assignment as made by Rosenfeld on behalf of the firm. The other partner, Haverland, did not then assent to or ratify the same, but after the garnishee process in this case had been served he did consent to the assignment and ratify the same. We think the finding of the court that the assignment was not assented to or ratified by ITaverland until after the garnishee process in this case was served upon the garnishee is fully sustained by the evidence. Such finding being sustained by the evidence, the assignment was clearly void at the time it was made. See Brooks v. Sullivan, 32 Wis. 444; Rumery v. McCulloch, 54 Wis. 565-571.
And the only other question in the case is whether the subsequent ratification of the assignment by the other partners, made after the respondents had served their garnishee process in this case, would relate back and make the assignment good from its date as against them. There can be no doubt but that such subsequent ratification would validate the assignment, if valid in other respects, as to all persons who had not acquired any right to the property assigned intermediate the date of the assignment and the date of the ratification; but as to parties who have acquired such rights, by attachment or by garnishment, before the ratification,
The learned counsel for the appellant does not question the rule of law as above stated, but he attacks the finding of the court that the assignment was not ratified until after the garnishee summons was served. The only ground for saying that the partner Plaverland consented to the assignment or ratified it before the garnishee summons was served, is the fact that he knew the fact that it had been made, and did not actively object to the assignee’s taking possession under it. The eviderice, shows, however, that he declined to sign a written assent to such assignment, and refused to do anything about it until he had consulted a lawyer; and, after having considered the matter, he says he concluded to consent to the assignment, and did so. This was after the garnishee summons had been served. The garnishee summons was served on the 24th of June, and the written consent to the assignment could not have been signed earlier than the evening of the 24th or morning of the 25th of June. We think the finding of the court is sustained by the evidence.
The objections to the evidence, taken by the garnishee,
By the Court.— The judgment of the circuit court is affirmed.