84 Wis. 295 | Wis. | 1893
1. It is assigned as error that the court erred in ordering judgment upon the plaintiffs’ motion, without
2. The answer shows that the court commissioner, before or at the time he filed the copy of the assignment and the assignee’s bond with the clerk of the circuit court, did not indorse on such copy his certificate “that the same is a true and correct copy of the original, and of the whole thereof, and that the said assignee named in the original
The provisions of secs. 1694-1696, in respect to the execution and approval of the bond of the assignee, and as to the manner of execution of the assignment, including the indorsement on the copy thereof of the certificates of the assignee and of the county judge or court commissioner, and of filing the same, have invariably been held mandatory in all cases in this court under these sections, and that no assignment can be perfected which will be valid as against creditors until the requisites here prescribed have been complied with. Until then the trust in favor of creditors has not been legally formed, and the property of the assignor is subject to attachment or other process in favor of any of his creditors. The decisions in this respect extend over a period of many years, and relate to a variety of points, and it has already been declared that it is now too late to consider whether some of these provisions, as an original question, might not properly have been held directory. Inasmuch as they are mandatory, the court has no right to enter into any discussion of their wisdom or propriety with a view of dispensing with their observance. It is enough to know that thus the law is written, and that, where the act requires a thing to be done in a particular
In Wadleigh v. Merkle, 57 Wis. 517, the court declared that “ under secs. 1691-1696, R. S., there can be no assignnient which shall have any efficacy to withdraw the property of the assignor from the reach of his creditors unless the provisions of these sections are complied with on the part of the assignor and assignee.” In Fuhrman v. Jones, 68 Wis. 497, it was held that until the bond of the assignee, properly approved, has been filed, with a true copy of the assignment with the indorsement by the assignee and certificate by the court commissioner, as required by sec. 1696, R. S., the as-signee has no right to the property attempted to be assigned as against attaching creditors. In that case it was said by the court that “ the object of having such indorsement by the assignee in the presence of the county judge or court commissioner is to secure action in good faith under official sanction. There was nothing connected with such copy here showing such presence until more than five weeks after the attachments. Th'e fact of such presence resting in parol during that time did not satisfy the statute. Accordingly such officer must indorse upon such copy of the assignment his certificate that the same is a true copy of the original, and of the whole thereof, and that such as-signee named in such original assignment did in his presence make the indorsement thereon as thus required.
Until the assignment and such completed copy are so filed with the clerk the assignee has no right to the property attempted to be assigned as against the attaching creditors of the assignor.” In Clark v. Lamoreux, 70 Wis. 511, Cole, C. J., in answer to the argument that the interests of creditors had not been jeopardized because this statute had not been strictly pursued, says: “ This is no
By the Court.— The judgment of the circuit court is affirmed.