93 Wis. 564 | Wis. | 1896
It appears from the record that on, and for a long time prior to, November 22, 1894, Augustus T. Riddell and Edward S. Morris were copartners, doing business in Milwaukee under the firm name of the Milwaukee Yariety Iron Works; that during that time there was duly assessed and levied by the proper officers of the city upon the personal property of the firm, consisting of buildings, machinery, tools, and plant, and book accounts, for the city taxes thereon for the year 1894, the sum of $72.12; that no part thereof had been paid; that on November 22, 1894, the said firm, and the said Riddell and Morris each individually, duly made, executed, and delivered a voluntary assignment of all their property to one Samuel R. Bell for the benefit of their creditors as such firm and such individuals, respectively; that Bell duly accepted the trust and qualified as such assignee, and thereupon, as such, took possession of the property and effects so assigned, and was in the possession thereof; that on November 21, 1894, the Commercial Bank of Milwaukee and the Shadbolt & Boyd Iron Company took possession of the buildings, machinery, tools, and plant mentioned, as chattel mortgagees, and on December 22, 1894, sold the same under and by virtue of such chattel mortgage; that the proceeds of the sale were insufficient to satisfy their claims; that Bell, as such assignee, had never received any proceeds from that sale; that the assignee realized only $340 from the book accounts; that on April 13, 1895, the court, by order, refused the application and motion of the city that the assignee be required to pay such taxes; that on June 3, 1895, Riddell petitioned the court in the manner required by the statutes to be discharged from his partnership and individual debts; that upon an order thereupon made, requiring all creditors to show cause at a time and place named why he should not be discharged from his partnership and individual debts, the city appeared, and objected to such discharge by reason of
In resisting the application of the city to require the as-signee to pay the taxes mentioned, the assignee admitted that he had realized $340 from book accounts; that he did not expect to be able to increase the amount very materially, unless it be by litigating disputed claims; that he had disbursed necessary expenses to the amount of $125.12; that there were a large number of unsecured creditors of the assignors, who, with the most favorable results, could realize but a very small per cent, of their claims. By the statute the assignee was expressly required to “ pay all taxes assessed upon the property assigned, which remain unpaid,” before making any dividend. Sec. 1700, S. & B. Ann. Stats. The court should have ordered the assignee to comply with that statute upon the application mentioned. Marathon Co. v. Barnes, 86 Wis. 663; Milwaukee v. Momsen, 89 Wis. 351. Besides, the tax in question was not a debt, in the ordinary sense, within the meaning of ch. 385, Laws of 1889 (secs. 1702«(-1702«, S. & B. Ann. Stats.). Cooley, Taxation, 15; In re Duryee, 2 Fed. Rep. 68; Crabtree v. Madden, 54 Fed. Rep. 431; McInerny v. Reed, 23 Iowa, 410. It is to be remembered that general words in a statute do not divest the government of its rights or remedies, and hence did not operate to discharge Riddell from the taxes mentioned. U. S. v. Herron, 20 Wall. 251; Smith v. Hodson, 50 Wis. 279.
By the Court.— The order and judgment of the circuit court are reversed, and the cause is remanded for. further proceedings according to law.
