61 Wis. 293 | Wis. | 1884
Lead Opinion
The following opinion was filed September 23, 1884:
The respondents, as garnishees, appeared and answered that the}1- had in their possession certain goods and chattels, credits and effects, belonging to the defendants, and that they held the same by virtue of an assignment made to them jointly by the defendants for the benefit of
On the trial the appellants objected to the assignment on many grounds, only two of which will be considered, as the assignment was unquestionably void on both of those, grounds.
1. Because the assignment itself is uncertain as to the property assigned. The following exception of the property assigned is made: “Saving and excepting from the effects of this assignment all such articles of household furniture and other effects as are exempt by law from seizure and sale under execution.” The principle violated is that the assignees must show title, or a right to the possession of the identical things held by them, and the things must be specific, and be identified by a sufficient description. The exemptions are a part of any of the property assigned, and the assignment is of a part of any of the' exemptions. They are not.
2. Because the assignees did not, “ before taking possession of the property assigned, and before taking upon themselves any trust conferred upon them by the instrument of assignment, deliver to the county judge or court commissioner of the county, etc., a bond, etc., in a sum not less than the whole amount of the nominal value of the assets of such assignors, which value shall be ascertained by the oath of one or more witnesses and of the assignors,” etc. The only bond delivered to the county judge in this case was one in the penal sum of only $5,000, irrespective of the nominal value of the assets as ascertained in any manner whatever before the assignees took possession of the property and upon themselves the trust conferred upon them by the instrument of assignment. This is indisputable. What was done subsequently to ascertain the nominal value of the assets is immaterial. The assignees had already been clothed with the power to make such a disposition of the property to the injury of the creditors as the statute was designed to prevent. Such a bond as the statute requires is the only security that
It seems that the nominal value of the assets was subsequently ascertained, by affidavits and inventories, at various amounts.. Such loose methods of an attempted compliance with such an important and imperative statute, after its flagrant violation that has already made the assignment void, cannot be sustained. The creditors had already been hindered and held off by the possession of the assignees and their taking upon themselves the trusts of the assignment. This court has so often and so recently decided that not giving the bond as the statute requires renders the assignment absolutely void, that we cannot treat the question as a new Or open one, or be governed by authorities elsewhere to any different effect. Page v. Smith, 24 Wis. 368; Churchill v. Whipple, 41 Wis. 611; Smith v. McCulloch, 42 Wis. 564; Scott v. Seavar, 52 Wis. 175. The reasons for so holding need not be repeated. The judgment should have been rendered in favor of the plaintiffs for the full amount of their claim, inasmuch as it appears by the finding of the court that there is sufficient money in the hands of the garnishees, the proceeds of the .property so sought to be assigned, for that purpose.
By the Court.— The judgment of the circuit courtis reversed, and the cause remanded with direction to' render judgment in favor of the plaintiffs against the garnishees for the whole amount of their claim against the defendants in this case shown.
Rehearing
1. In the argument for a rehearing of this cause the single point is made that this court was mistaken when it said the garnishees’ answer showed a joint liability under the assignment. Counsel states that the garnishees answered separately in the statutory form (R. S. sec. 2759), and claims that this is only a denial by each of individual liability as a garnishee. Undoubtedly they did so answer, but we do not find their formal answers in the record. Neither do we find therein the affidavit upon which the garnishment proceedings were based. The answer mentioned in the former opinion means the statements of the garnishees in their testimony given on the trial of the issue of their liability. That is all we then had or now have before us upon which judgment can properly be rendered. Neither in those answers nor in any of the proceedings on the trial is there any suggestion that the affidavit of garnishment fails to charge a joint liability, or that the garnishees were defending as individuals,, and not as a firm. They joined in their defense, if they did not in their formal answers, and both of them testified that they held the property of the principal debtors under the assignment to them, and read that instrument in evidence to establish their title to the property. Hence the facts on this branch of the case, as they appear in the record, were stated correctly in the former opinion, and we are satisfied that the correct legal rule was applied.
2. One ground upon which the assignment was held void is that it is uncertain as to the property assigned, because of a reservation therein of exempt property. We have had occasion to reconsider this proposition in First Nat. Bank of Madison v. Hackett, post, p. 335, and have there held that such reservation in an assignment by a copartnership is inoperative, because the law gives the assigning firm, as
3. We adhere to the opinion that the assignment is void because of the insufficiency of the assignees’ bond; •
By the Court.— Motion denied.
Dissenting Opinion
I respectfully dissent from this opinion as to the construction of the reservation clause in the assignment of exempted property.