Rice v. Wolff

65 Wis. 1 | Wis. | 1885

Cassoday, J.

After a careful reading of all the testimony, we are forced to the conclusion that the findings of the court are sustained by the evidence. To enforce this by recitals of testimony and argument would simply incumber the reports without any benefit to any one or the public. It will not be indulged. The validity and justice of Caroline's debt against Kluetz, November 1, 1883, is not questioned. It represented the amount of her money in the business of Kluetz, which was then turned over to the new firm. At that time Herman went into partnership with Kluetz, but without any capital. The firm then took the property which Caroline's money had secured. There was no inducement nor reason for her to impair or lessen her security. The form of it could only be changed by her consent and agreement. If she gave up her note against Kluetz, it was but equitable that the firm should assume the debt and give her the firm note in lieu of it. Such was the agreement as found by the court. In pursuance of that agreement, the firm note was given within a week from the formation of the partnership, and dated as of the time of the agreement. Under the agreement, as found,- we think it was essentially a firm debt. Being a firm debt, and based upon a good consideration, it was'just as equitable as the debts of the plaintiffs which -were subsequently contracted. The firm being justly and equitably indebted to Caroline on the firm note, she had the same right to attach the firm property thereon as any of the plaintiffs, or any other firm creditor. The charge that the attachment by Caroline was procured by collusion with the debtors, and with the intent to defraud other creditors, is negatived by the findings, which are sustained by the evidence.

The attachment proceedings in favor -of Caroline appear to be valid upon their face. There.is no claim to the contrary. This being so, the case is distinguishable from Hawes v. Clement, 64 Wis. 152. Being valid upon their face, and there being no fraud or collusion, we do not think the statements contained in the affidavit for the attachment could be traversed, or were open .to controversy on this bill in equity, instituted .several months after the property had been seized upon the writ. The right of traverse is given by statute. Sec. 2745, E. S. This 'being so, it must be accepted with its restrictions and limitations. The time for its exercise is limited. The right of its exercise is only given to a defendant. Ibid.; Howitt v. Blodgett, 61 Wis. 380. Possibly it might be made available to other representative parties, but not without being made on leave of the court first obtained. Ibid.

We cannot hold that Caroline waived or lost her attachment .by failing to issue execution while the rights of the parties were -in controversy.

Por the reasons given, that part of the judgment of the circuit court appealed from is affirmed. In pursuance of a request of the plaintiffs, the clerk is at liberty to remit the record at once.

By the Court.— Ordered accordingly.