65 Wis. 388 | Wis. | 1886
The respondent, on the 13^h day of October, .1884, entered up judgment against Morris Kahn, the defendant, on judgment notes, and execution was issued, and the personal property of said defendant was levied upon. The appellants, as creditors of said Kahn, procured attachments against him, and said property was levied upon or taken'by the same officer on the same, subject to the levy of said execution. The property was sold under said execution, and the sum of $3,516.90 made thereon, and still remained in the hands of the officer when said appellants filed their petition to have said money paid into court to await the trial of an issue to be made thereon, upon the charge therein that the said judgment notes were a sham, and given to defraud the petitioners and other creditors of said Kahn; and prayed that the judgment notes be declared void, and said judgment vacated and set aside, and that
The only contention here upon this record is on the part of the respondent that said appellants were only general creditors, and had no right to have such issue tried or the money so paid upon their attachments; and on the part of the appellants that they held liens by the levy of their attachments on the property, and had the right to have such issue tried, and have the said money applied upon their attachments, or have the said money remain in court until they could obtain judgments on said attachment suits. As we understood the learned counsel of the respondent, they did not question the right of the appellants to have such trial and to have the money applied upon the payment of their claims if such issue was found adversely to the respondent, if they had judgments in said attachment suits and a levy so made upon the property, nor question the jurisdiction of the court in such a proceeding, or the practice adopted. Both the jurisdiction of the court and the practice adopted have been approved by this court in several cases analogous to this ease, where there are contesting claimants of a fund in court. McDonald v. Allen, 31 Wis. 108; Allen v. Beekman, 42 Wis. 185; and other cases. But the precise questions of contention in this case have probably never been raised before in, or decided by, this court.
1. The right of attaching creditors who have secured a levy upon the property in the hands of an officer by virtue of a previous levy thereon of an execution, to file such a petition attacking the debt or judgment of the execution creditor
2. But many of these cases have arisen and been disposed of before the property has been sold on the prior levy and the money made, when speedy action was necessary to avoid the consequences of delay. Such was the reason given in a case in point, of Heyneman v. Dannenberg, 6 Cal. 376. In Mechanics' & T. Bank v. Dakin, 51 N. Y. 519, where no such expedition was necessary, the creditor was required to first obtain a judgment in his attachment suit, and it was held that the service of the attachment created the lien, and the judgment determined that the lien should be enforced to the extent of the payment of the debt. In Rinchey v. Stryker, 28 N. Y. 45, there was need of dispatch, and the petition was entertained and the issue made, and pending the issue judgment in the attachment suit was ob-
By the Court.— The whole of the order of the circuit court, embracing the order denying the petition and the order that the clerk pay the money to the attorneys of the respondent, is reversed, and the cause is remanded for further proceedings according to this opinion.