Meissner v. Meissner

68 Wis. 336 | Wis. | 1887

Tatloe, J.

The status of this case seems to be as follows: The respondents have judgments against Max Meiss-ner, upon which executions have been issued, and the property of Max Meissner has been sold upon such executions, and the money paid into court, where it was held subject to a litigation between said respondents and some of the creditors of Max Meissner. On the termination of such litigation a part of the money received upon such execution sale was paid to the other litigating creditors, and the balance was ordered to be paid over to the respondents. The appellant in the mean time has obtained a judgment against the said Max Meissner, and he now makes a motion to the court where said money is deposited to have the part heretofore ordered to be paid to said respondents paid over to him — first, on the claim that the judgments in favor of the said respondents are fraudulent and void as to the petitioner; and, second, upon the ground of an existing agreement between the petitioner and-the respondents that it should be paid to him in case the former intervening creditors were successful in their litigation. The petition does not show that any execution has ever been issued on the judgment of the petitioner.

We think the petition of the appellant was properly denied, upon several grounds:' First, he had no lien, by attachment or execution, upon the fund in the hands of the court; second, not having had an execution issued upon his judgment and returned unsatisfied, he has no standing in equity to have the fund applied to the payment of his judgment or to contest the validity of the judgments of the respondents; and, third, he had obtained his judgment in time to have intervened with the other intervening creditors and had his right protected in that proceeding, and neglected to do so.

If this proceeding can be maintained at all, it must be upon equitable grounds and as being a proceeding in equity to subject the property of a debtor, in the hands of his fraudulent grantee or assignee, to the payment of his debts. It has been a long-established rule in this court, as in most eourts, that a creditor cannot maintain such equitable action as a general creditor of the debtor, but must first procure a judgment against the debtor and exhaust his remedy upon such judgment by the issue and return of an execution unsatisfied, before he can maintain an action in equity to reach the property of the debtor which has been fraudulently conveyed. See Montague v. Horton, 12 Wis. 599, 606; Hyde v. Chapman, 33 Wis. 391, 399, 400; Williams v. Sexton, 19 Wis. 42; Gates v. Boomer, 17 Wis. 455; Cornell v. Radway, 22 Wis. 260. These cases make it certain that the appellant, upon the facts stated, could not maintain a creditors’ bill to reach the money in question. And if a proceeding by petition and by motion of one creditor to reach money in the hands of a court, apparently belonging to another creditor of a common debtor, may take the place of a creditors’ action, we are of the opinion that the petitioning creditor must show that he has exhausted his remedy at law against the common debtor, or he must show a specific lien upon the particular property or money sought to be reached, either by an attachment or execution levied upon the same or upon the property from the sale of which the fund has arisen, as was done in this case upon the inter-wention of the creditors of Geilfuss and Gore. This proceeding is neither a proceeding in aid of an execution, nor supplementary to an execution, nor a garnishment under the statute, and must therefore be sustained, if sustained at all, as a proceeding in the nature of a creditors’ action .in • equity, and as such action the petition fails to state facts sufficient to sustain it. See sec. 3029, R. S. 1878.

The fact that the petition alleges that the petitioner was induced not to take steps to intervene as a creditor with the intervening creditors, Geilfuss and Gore, and have his rights determined in that proceeding, upon the strength of a promise made by the respondents that the balance of tbe fund should be applied on his judgment if the intervening creditors succeeded, is a sufficient reason to justify the -court in dismissing the petition, even if the petitioner had shown himself to have been otherwise entitled to be heard. He must by that act be held to have waived his right to intervene for this money in the hands of the court. If his statement in this regard be true, it is probable that the petitioner could maintain an action upon such promise, and protect himself in that way, and so render this equitable proceeding unnecessary.

We think that, upon all the facts appearing in the record, there was no error on the part of the county court in refusing to grant the prayer of the petitioner.

By the Court.— The order of the county court appealed from is affirmed.