60 Wis. 546 | Wis. | 1884
The complaint alleges that the firm, of T. P. Wither & Co., on the loth day of September, 1883, made an assignment of their property, both real and personal, to the plaintiff, for the benefit of their creditors, and all the conditions required by the statute were complied with to make the assignment valid on that day. On the 25th day of the same month, the assignors completed and made a correct inventory of their assets and list of their creditors, as required by law, and on the same day such inventory and list were duly verified by their affidavit, and certified to be correct by the said plaintiff, as such assignee. The complaint further alleges that the “plaintiff and said-assignors, by a mistake in computing time, verily believed the 26th day of September, 1883, to be the tenth day after the execution of such assignment; and on the 26th day of September, 1883, mistaken^ believing the same to be the tenth day after the execution of such assignment, filed in the office of the clerk of the circuit court the aforesaid inventory of assets and list of creditors, such day being the eleventh day after the execution of such assignment,” and that due notice was given to the creditors, etc.; and then the complaint alleges that the defendant, as sheriff of Monroe county, under and by virtue of certain warrants of attachment, seized and levied upon certain personal property of the said assignors, which passed to the plaintiff by said assignment, and detains the same.
The only question raised by the demurrer, and argued by the learned counsel in this court, is, Did the failure to file the inventory and list of creditors within ten days after the execution of the assignment render void the assignment as to creditors? Whether such failure rendered the assignment void as to the parties to it, is not the question in this case, for the complaint placed the defendant in the position of representing creditors. The only question in relation to the assignment in which the defendant is at all interested, is whether the title of the property has passed, by virtue of the assignment, beyond the reach of the attachments. The assignment may be valid as between the parties, and as to all the creditors of the assignor who may not seek to avoid it for the reason that the inventory and list were not filed in time. These attaching creditors, represented by the sheriff, in the seizure of the property so. assigned to satisfy their demands as still being the property of the assignor, disaffirm and repudiate the assignment on the ground that the assignment is void as to them and all other creditors who contest it. It is only in respect to this attitude of the case, im which the complaint has placed it, that the statute must be examined and construed. The language to be construed is in sec. 1097, R. S.: “ and a failure to make and file such inventory and list shall render such assignment void.” The inventory and list, in this case, were not filed within ten daj's after the execution of the assignment, but were filed on the eleventh day.
The learned counsel of the respondent insists that this question has been decided in three late cases in this court, viz.: Harwell v. Gundry, 52 Wis., 268; Steinlein v. Halstead, 52 Wis., 289; Haben v. Harshaw, 59 Wis., 403.
All that was said by Mr. Justice LyoN in the first case,
What was said in the second of the abové cases, pertinent to this question, was: “In respect to these requirements
In the third case above mentioned, of Halen v. Harshaw, 59 Wis., 403, there appeared to have been two assignments in one instrument: one, of the assignor’s property held under a partnership name; and one, of'her property held in her individual name; and there was no inventory made or filed of her individual property under the second assignment. After quoting section 1697, E. S., above referred to, the opinion of Mr. Justice Taylob says: “ The construction which should be given to this section has been considered by this court in two cases [referring to the above two cases]. . . . Both cases, however, hold that the statute is imperative; that a correct inventory of the assets and list of creditors must be made and filed within the ten days, otherwise the title of the assignee, under the assignment, will be divested, unless it appear that the want of correctness. in the inventory or list arose through a mistake of fact or law made by the assignor.” It is further stated in the opinion: “We can come to no other conclusion than that the title of the as-signee was divested by a failure on the part of the assignor to make and file a correct inventory of her assets within ten days after the execution of the assignment, as required by sec. 1697, E. S., and that, by reason thereof, Ilaben failed to show any title to the property taken by the 'sheriff,” etc. And, further: “The record shows that this action was commenced more than ten days after the execution of the assignment.” The effect of this last conclusion is that, at any time after such ten days, if no such inventory has been filed within such ten days, the property would be liable to attachment. In this case it became necessary again to construe this section, and it was construed the same as in the
I have been careful, even at the expense of some prolixity, and, perhaps, unnecessary quotations of some length from these cases, in examining the cases to ascertain whether this question, the only one involved in this case, has not. been already decided by this court at least three times. After it has been so ascertained, it is not only unnecessary,, but improper, for this court to re-examine it as an original question. There ought to come a time when the decisions of this court should be treated as final.
In Haben v. Harshaw, supra, it is already sufficiently decided that the mistake spoken of in this section must be of something in the inventory or list; which disposes of the other question raised by the learned counsel of the appellant, whether it might not embrace a mistake in the time of filing. It is also claimed by the learned counsel of the appellant that the filing of the inventory and list ought to be treated as notice only to the creditors, and if filed before the attachment is served, such attaching creditors had sufficient notice thereof, and are bound by the assignment. This would be making an entirely new provision of the statute, for none such now exists.
From this time, at least, it is to be hoped that it may be accepted as the deliberate judgment and decision of this court that this section means just as it reads literally, by the ordinary rule of construction that all the words used shall have a meaning if possible. If the inventory and list may be filed at any time, then the words “ within ten days ” in the requirement mean nothing, and have no effect. To satisfy a demand of hypercriticism that the words of the prohibition in a statute should all be repeated in the penal or forfeiture clause, or they will not be deemed to be embraced in it, this section might be made to read as it evidently means: “And a failure to so make and file, or to
It follows that the complaint shows that if the plaintiff had any title to the property by virtue of the assignment, it was forfeited, and the assignment became void as to the defendant, by the failure of the assignor to make and file an inventory of his assets and list of his creditors within ten days after the execution of the assignment. The complaint therefore states no cause of action, and the demurrer was properly, sustained.
By the Court.— The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.