97 Wis. 492 | Wis. | 1897
This was one of-the contests which so often
arise between a chattel mortgagee of a stock of goods and attaching creditors of the mortgagor. The attaching creditors claimed that the mortgage was fraudulent as to creditors, and this was the main question litigated in the case. The fact was undisputed that the consideration for the execution of the mortgage was a pre-existing debt, and the jury found that this debt was a bona fide debt, and that, while the mortgagor intended to defraud his creditors in giving the mortgage, and the mortgagee knew such facts and circumstances as should have put him on inquiry, which would have led to his ascertaining the mortgagor’s purpose, still the mortgagee had no knowledge of the fraudulent intent of the mortgagor, and that there was no agreement or understanding that the mortgagor might apply the proceeds of sales of the mortgaged property to his own use.
Under the rule laid down in Bleiler v. Moore, 94 Wis. 385,
There are, however, other questions in the case which require attention, and which have caused us no little trouble; not so much by reason of their inherent difficulty or intricacy, as on account of the slovenly and imperfect manner in which the bill of exceptions has been prepared. So great has been the difficulty encountered in ascertaining the facts upon some of the questions raised that it has almost seemed as if we would be justified in striking the bill bodily from the record’ and affirming the judgment upon the pleadings ■and verdict. The amount involved in the action, however, is so considerable that we have finally concluded to consider the questions as best we may upon the imperfect and fragmentary record before us.
In order that these questions may be properly understood, it becomes necessary to state some further facts which appear in the record. The stock of goods was first seized on the 26th day of November by the sheriff, Peters, upon a writ of attachment in favor of Bhaltman & Oo. Afterwards, upon the same day, the sheriff received three other writs of ■attachment in favor of the defendants Scheftels, Abeles, and Mahler, and the Pritzlaff Hardware Company, and levied them upon the same goods in the order of their receipt, and all subject to the Shakman attachment. The remaining attachments were levied subsequently, partly on the following ■day and partly on November 28th, 30th, and December 1st.
While the sale was progressing,'and in the latter part of
On the 31st day of December, 1894, an action in equity was commenced in the circuit court for Dodge county by all the attachment creditors jointly against William F. Koch, George Koch, and Amelia, his wife, Edward Schwartz, and John Hoffman, in which it was sought to set aside as fraudulent and void the chattel mortgage in question; also a certain transfer by G. G. Koch of a creamery business and property to Schwartz & Hoffman. The relief demanded in. this action, among other things, was that William F. Koch be enjoined from foreclosing his said chattel mortgage, or seizing the goods, or commencing any action to recover their value, and a preliminary injunctional order was issued on the same day restraining William F. Koch from either of said acts during the pendency of the action. Answers were served by the defendants in this action denying fraud, but containing no counterclaim, and upon the 6th of June, 1895, prior to the commencement of the present action, the temporary injunction was, upon motion, dissolved so far as it affected Willimn F. Koch. In this action in equity, the various attaching creditors were respectively represented by the same attorneys who represented them in the attachment actions, and who now represent' them in this action. This brings us naturally to the consideration of one of the grounds of error urged by the defendants.
At the close of the plaintiff’s case, Mr. Sutherland, who represented three of the attachment creditors whose attachments were levied after some seven or eight prior writs had been levied, moved for a nonsuit as to his clients, and at the close of the evidence he moved the court to direct a verdict for his clients on the ground that the goods had been previously seized by the sheriff under the earlier writs. Mr. Malone also moved at the close of the case to dismiss the action as to all the defendants whom he represented except the defendants 8hakman <& Go., on the ground that there was no evidence to sustain á verdict against any of the other defendants. All these motions were overruled, and error is alleged upon the rulings. In support of the motions it is
In this case, however, it appears that there was concert of action on the part of all the creditors after the seizure by the sheriff, and this fact appears by such evidence as to be conclusive. In the first place, it is shown that three of the attorneys for the attaching creditors (who had no interest in the matter except as representing their clients) were present at the sales, and directed the sheriff in making them.' These attorneys represented all of the creditors save three firms who are represented by Mr. Sutherland. Before the sheriff’s sales were finished, however, another step was taken by the attaching creditors, including Mr. Sutherland’s clients, which certainly establishes beyond dispute joint action and liability upon the part of all of them, and that step was the
There were some exceptions to rulings upon evidence, but they are not of sufficient importance to require discussion. There was no ruling which could affect the questions upon which the case was decided, and hence there was no prejudice even if there was technical error.
We have now discussed all the assignments of error which go to the merits and which seem to require discussion, and have found no prejudicial error as to all of the defendants who were attaching creditors, or who signed bonds of indemnity to the sheriff. There are four defendants, however, who appear simply to have signed undertakings upon attachment, and who do not appear to have signed any indemnity bonds, nor participated in any way in the acts of the sheriff; and we do not see how they can be held liable in this action. Their undertaking simply was an agreement that they would pay the defendant in attachment, George G.
Some questions arise upon the taxation of costs which require consideration. The summons contained three folios and the complaint 179 folios, of which 160 folios consisted of an itemized schedule of the stock of goods in question. Costs were taxed for these papers' as follows:
Draft summons, 3 fols., 25c."..§ 75
1 copy eng. 1 copy keep. 33 serve. 105 fols., 12c. 12 00
Draft complaint, 179 fols., 25c. 44 75
1 copy eng. 1 copy keep. 33 serve. 6,265 fols., 12c. 75180
This taxation of costs was certainly an abuse. The plaintiff was entitled to tax for draft of each paper and for three copies, viz. one engrossed copy, one to keep, and one to serve. Dunkan v. Erickson, 82 Wis. 128. He was not entitled to make and charge for thirty-three copies to serve simply because there were thirty-three defendants. It is the sheriff’s duty to make copies of the summons and complaint to serve upon the varions defendants. E. S. sec. 731, subd. 4. There is; however, another manifest abuse here, which is of greater importance, which is so glaring that the court will correct it' upon taxation of costs, and that is the charge for copies of 160 folios of complaint which consisted simply of an itemized inventory of the entire stock of goods. It was not necessary to attach such a list to the complaint. The goods should have been described in general terms, and a list could have been demanded and furnished afterwards, if necessary.
Draft summons, 3 fols., 25c.'.. § 75
3 copies, engrossing, keep, and serve, 9 fols., 12c. 1 08
Draft complaint, 19 fols., 25c. 4 75'
3 copies, engrossing, keep, and serve, 57 fols., 12c. 6 84
There was also taxed $9.10 for drawing affidavits and resisting a motion to change venue. As the plaintiff was successful in this motion, and recovered $10 motion costs, he cannot tax these items in the bill of costs. The costs allowed on the motion are intended to cover these very things. Costs were allowed for two copies of the judgment, one an engrossed copy and one to keep. This, we think, was correct.
Objection is made to the taxation of double fees for travel of witnesses. It appears that the case was set for trial for a day certain, and that the plaintiff with his witnesses attended on that day, and that the court was then engaged in other business and could not take up the cause, and it was set for another day, and the witnesses went home, and returned on the adjourned day. Under these circumstances we think the charge was correct.
The reduction in the cost bill as indicated above amounts to $805.58. As to this amount the judgment must be reversed.
By the Court. — Upon the appeal of the defendants Perry, Cary, Hughes, and Merryman the judgment is reversed, with costs, and as to them the action is remanded for a new trials upon the appeal of the remaining defendants so much of the judgment as adjudges the recovery of more than $361.46 costs is reversed, and the remainder of the judgment is affirmed, with costs.. No costs are awarded to the last-named appellants, because, upon the merits of the case, the respondent has been wholly successful.