Johnson v. Hill

| Wis. | Apr 3, 1895

Cassoday, J.

It is found by the court, and undisputed, that at tbe time of making the assignment and granting the discharge the plaintiffs, as well as the defendant, resided in La Crosse county. The plaintiffs appear to have been named in the list of creditors filed by the defendant in his insolvency proceedings, on account of the note in question. Such being the facts, there can be no doubt that the discharge was a bar to this action, unless there was some failure to comply with some provision of the statute in obtaining the same. Laws of 1889, ch. 385, secs. 12-15; S. & B. Ann. Stats, secs. 1702o-1702r.

It is contended that the discharge is ineffectual because there was no indorsement upon the bond given by the as-signee, by the circuit court commissioner receiving the same, showing that he was satisfied therewith and accepted and approved the same, as required by the statutes. R. S. secs. 1694, 1695. This action was commenced January 9, 1893, but was not tried until August 30, 1893, and the judgment was not entered until October 7, 1893. Ch. 276, Laws of 1893, went into effect May 2, 1893, and amended the sections of the statutes cited so that the taking and filing of such bond by the court commissioner must be deemed a sufficient approval thereof, and provided that all bonds theretofore taken and filed by such court commissioner were thereby declared to be sufficiently approved and valid. Since such indorsement was only required by reason of the statute, we have no doubt of the power of the legislature to thus cure the defect by such subsequent enactment. Similar questions have frequently been determined by this court. Selsby v. Redlon, 19 Wis. 17" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/selsby-v-redlon-6599261?utm_source=webapp" opinion_id="6599261">19 Wis. 17; May v. Holdridge, 23 Wis. 93" court="Wis." date_filed="1868-06-15" href="https://app.midpage.ai/document/may-v-holdridge-6599996?utm_source=webapp" opinion_id="6599996">23 Wis. 93; Kimball v. Rosendale, 42 Wis. 412; Cathcart v. Comstock, 56 Wis. 613; Raymond v. Sheboygan, 76 Wis. 335" court="Wis." date_filed="1890-03-18" href="https://app.midpage.ai/document/raymond-v-city-of-sheboygan-8183330?utm_source=webapp" opinion_id="8183330">76 Wis. 335.

It is coutended that a copy of the order to show cause why the discharge should not be granted was not published for “ sis successive weeks prior to the day of hearing,” as required by the statute (Laws of 1889, oh. 385, seo. 4; S. & B. Arm. Stats. sec. 1702p). It appears that the first publication was on Thursday, May 8, 1890, and the last publication on Thursday, June 12, 1890, and that it was also published on each of the four intervening Thursdays; so that there were in all six publications, — one in each of “six successive weeks prior to the day of the hearing.” The order was made and dated April 26, 1890, and the day fixed therein for such hearing was June 28, 1890, naming the hour and place. True, there were only thirty-six days from the time of the first publication to the time of the last publication, inclusive; but there were six publications, and there were more than seven weeks from the time of the first publication to the time fixed for the hearing. We must hold that the publication was sufficient to satisfy the requirement of the statute. Cox v. North Wis. L. Co. 82 Wis. 141" court="Wis." date_filed="1892-04-12" href="https://app.midpage.ai/document/cox-v-north-wisconsin-lumber-co-8183961?utm_source=webapp" opinion_id="8183961">82 Wis. 141.

By the Oowrt. — ■ The judgment of the circuit court is affirmed.

Eewman, J., took no part.