Hammel v. Schuster

65 Wis. 669 | Wis. | 1886

TayloR, J.

The respondent was summoned as garnishee in an action by the appellants against the firm of Canon Bros. The respondent claims to be the assignee of the firm of Canon Bros, under an assignment made by them on the 23d of February, 1883, to him, as their assignee for the benefit of their creditors. The appellants attack the assignment as void in law on account of certain alleged defects therein, and as void in fact because it is alleged that it was made to defraud, hinder, and delay the creditors of the assignors.

The learned counsel for the appellants claims that the assignment is void in law (1) because the bond was given for only $15,000, when it is claimed that the nominal value of the assets was $21,000; (2) because the affidavit of the sureties to the bond is not in the form prescribed by law; (3) because the county judge to whom the bond was delivered was a creditor of the assignors; (4) because the county judge to whom the bond was delivered drew up the assignment papers; (5) because the firm property of the assignors was the only property assigned.

The first objection is not sustained by the evidence. The only ground for stating that the bond is not for the nominal value of the assets is based upon values stated in the inventory afterwards filed in the case. The law does not require that the inventory of the property should state its value; and the other evidence in the- case shows that the bond was in fact for an amount much exceeding the value of all the assets of the firm delivered to the assignee.

The second objection as to the sufficiency of the affidavit of the sureties is not well taken. The following is the form of the affidavit:

“ State of Wisconsin, Ola/rli Ooimty — -ss.: George L. Lloyd and D. Dickinson, the sureties in the above and foregoing undertaking, being severally and duly sworn, each for himself deposes and says as follows: That I reside as in said bond stated, and am worth the sum of the said George L. Lloyd twelve thousand dollars, and the said D. Dickinson three thousand dollars in property situate in this state, over and above all debts, liabilities, and exemptions, and am a freeholder in the state of Wisconsin.

[Signed]

“ Geo. L. Lloyd,

[Jurat.]

“D. Dickinson.”

It is insisted by the learned counsel that the sureties each testifies that he is worth the sum of the said George L. Lloyd, and not that George L. Lloyd is worth $12,000 and Dickinson $3,000. If we place a comma after the words “the sum of” there will be no difficulty in determining what the sureties testified to. So punctuated, George L. Lloyd testifies that he is worth $12,000, and D. Dickinson that he is worth $3,000, over and above, etc. "We think the affidavit of the sureties sufficient.

The third objection, that the county judge was a creditor of the assignors, does not appear to be sustained by the evidence. He says he is not a creditor of the assignors, and was not at the time the assignment was made, and there is no evidence showing the contrary. He is not named as a creditor in the schedule of creditors.

Fourth. It is insisted the assignment is void because the county judge who approved the bond, and to whom it was delivered, drew the assignment papers. There is nothing in the statute prohibiting the county judge from drawing the assignment papers, and the fact that he did, does not render the assignment void. The- section of the statute cited (2582, E. S.) prohibits a judge from giving “ advice to parties litigant in any matter pending before him, or which he has reason to believe will be brought before him for decision, or draft or prepare any papers or other proceedings relating to such matter or action.” The making of an assignment is not an action, and the assignor and assignee are not parties litigant in a matter pending before the county judge. All the judge has to do with the case is to see that the bond is in the form, and that the sureties justify as, required by law, and that the proper indorse-ments are made thereon by the assignees. He can do this as well when he draws the bond as when it is drawn by some other person.

The fifth objection is not now urged. An assignment by a partnership of partnership property alone was held valid by the court in Auley v. Osterman, ante, p. 118; Rumery v. McCulloch, 54 Wis. 565.

It is urged by the learned counsel for the appellants that the evidence in the case is such as to require the court to submit to the jury the question whether the assignment was not fraudulent in fact as to the creditors of the assignors. After a careful reading of the evidence we find nothing which indicates that the assignors, before or at the time of making the assignment, had any intention of defrauding their creditors, or hindering or delaying them in the collection of their debts, except such delay as would necessarily result from making an honest and fair assignment for their benefit. All the acts brought out in the' evidence which tend to show a want of good faith on the part of the as-signee relate exclusively to his acts and doings after the assigned property came to his hands by virtue of the assignment ; and there is no evidence which tends to connect the assignors with any of the acts of the assignee which are complained of as evidencing a fraudulent intent on his part.

When an assignment “ is made in good faith by the assignors, and without any fraudulent intent, it cannot be defeated by proof that the assignee abused his trust, misappropriated the property, or acted dishonestly in its disposal.” Burrill, Assignm. § 351, and cases cited in the notes. See, also, the long list of cases cited by the respondent in his brief in this case. The creditors are supposed to be protected against the fraudulent and negligent acts of the assignee by the bond given by him at the time the assignment is made. We find no error in the record.

By the Court.- — The judgment of the circuit court is affirmed.