Freiberg v. Singer

90 Wis. 608 | Wis. | 1895

Pinney, J.

This action was not tried until after ch. 276, Laws of 1893, went into effect. This act provided that the taking and filing of the bond of an assignee by a court commissioner should be deemed to be a sufficient approval thereof, and that “ all bonds heretofore taken and filed, as aforesaid, by said court commissioner, are hereby declared to be sufficiently approved, and valid.” The case of Johnson v. Hill, ante, p. 19, is decisive of this case. It was there Reid that, as the indorsement of approval by the court commissioner was only required by reason of the statute, the legislature had.the power to cure the defect in question by a subsequent enactment. The curative effect of the enactment relates back to the time the bond was delivered and filed with the assignment in the office of the clerk of the circuit court, and perfected the rights of the defendant as assignee of Schwartz & Pohlman to the property and estate assigned as of that date. The act is in express terms retrospective, and there is no reason why it should not operate in the manner stated. The plaintiffs had not acquired by the service of the garnishee process any right to the remedy they had invoked which could not be taken away from them by the act in question. The remedy was given by statute, and until the proceeding had passed into judgment the legislature might change it or take away the right of action altogether. Dillon v. Linder, 36 Wis. 344; Farrell v. Drees, 41 Wis. 186; Rood v. C., M. & St. P. R. Co. 43 Wis. 146, 150. The point that the operation of the act is limited to the time when, by the second section, it was provided it should take effect and be in force, namely, from and after its passage and publication, is untenable, and contrary to the express terms of the act, by which it was given a retrospective operation extending to “ all bonds heretofore taken and filed as aforesaid ” which had not been approved.

It follows that the judgment of the circuit court, charging the garnishee on the ground that the assignment was void by reason of the failure of the court commissioner to approve the, bond of the defendant the assignee before he was served with the garnishee summons, is erroneous and must be reversed.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in favor of the garnishee defendant.

A motion for a rehearing was denied September 26, 1895.