98 Wis. 245 | Wis. | 1898
1. The officer, C. N. Brown, court commissioner, taking the bond of the assignee, Alford, did not sign or execute the certificate required by sec. 1696, R. S., to be indorsed on the copy of the assignment, and, as found by the court, at the time of the filing of the said copy of said assignment and of the bond he did not indorse, and at the the time of the service of the affidavit for garnishment and garnishee summons he had not indorsed, on the said copy, his certificate, as required by the statute (R. S. sec. 1696). An unsigned indorsement was not, in any proper sense, a •compliance with the statute, and it is not found that the unsigned certificate or indorsement had in fact been indorsed on the copy of the assignment by such officer. That the omission was inadvertent can make no difference. The objection is substantial and fatal to the validity of the assignment. Fuhrman v. Jones, 68 Wis. 497; Grever v. Culver, 84 Wis. 295; German Am. Bank v. Devlin, 96 Wis. 155. The rights of the parties were fixed and adjudged by the judgment in the present cause, given before the curative act (sec. 2, ch. 334, Laws of 1897) became operative, and hence the case does not come within its operation. Freiberg v. Singer, 90 Wis. 611; Dillon v. Linder, 36 Wis. 344.
2. The circuit court held that the garnishee, Alford, was liable, as such, for $674.56, a sum clearly in excess of the amount due on the judgment of the plaintiff. Of the sum of $674.56, with which the garnishee was so charged, was the sum of $269.10 derived by the assignee from the sale of the interest of the assignor in real estate in Madison, sold by the assignee by the direction of the court. As the assignment was void, the assignee held this monej'- for the benefit of the plaintiffs, as creditors of Abbott, the assignor. The remainder of the said sum of $674.56 consists óf the proceeds of
By the statute (R. S. sec. 2768) it is provided that “from the time of the service of the summons upon the garnishee, he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession, or under his control, belonging to the defendant, or in which he shall be interested, to the extent of his right or interest therein. . . . Any property, moneys, credits and effects, held by a conveyance, or title, void as to the creditors of the defendant, shall be embraced in such liability.” The assignment from the defendant Abbott to the garnishee was valid and operative as between the parties to it, and void only as to the plaintiffs and other attacking creditors. As to these plaintiffs, it was still the personal property of their debtor, Abbott, and he had an interest in it which could be taken on -execution or reached by garnishee process. Inasmuch as the assignment was void as against the plaintiffs as creditors of the defendant, Alford, as assignee and garnishee, held this property or its proceeds received by him by a title void as to the creditors of the defendant Abbott, and he was chargeable on account ’ thereof, as such garnishee, by the plain words of the statute. Bull and ample provisions are made for the disposition of property held by a garnishee under circumstances such as are disclosed in the present case. R. S. sec. 2766. • There was'no occasion to direct a sale. A sale had already been made, and the money, to the amount with
The judgment of the circuit court is in accordance with the substantial rights of the parties as shown by the finding of the court, and there is nothing to impeach or question the-correctness of such finding. It therefore supports the judgment.
By the Oowrt.— The judgment of the circuit court is affirmed.
