73 Wis. 354 | Wis. | 1889
The counsel for the respondent is fully justified in' insisting that this case, in all its essential facts, is the same as Standard Paper Co. v. Guenther, 67 Wis. 101. The cases cannot be distinguished in principle. The findings of fact by the trial court abundantly sustain this view. The head-note in the Standard Paper Case correctly states the principle decided in the following language: “ "When the mortgagee of chattels delays the filing of his mortgage at the request of the mortgagor and in order that the credit of the latter may not be injured, he is estopped to assert such mortgage as against creditors who, after the execution of the mortgage and before its filing, gave credit to the mortgagor upon the faith that his property was unincum-bered ; and this is so although the mortgagee had no actual intent to defraud any creditor.”
In this case the trial court found, in substance, that the note which is the basis of the judgment on which this garnishee process was issued was given on the 16th day of June, 1884, in consideration of the settlement and discon
It is said by the learned counsel for the garnishee that the plaintiff had notice of the existence of this mortgage, and did not rety upon the property of the Presse Company
But it is further claimed that the plaintiff is equitably estopped from questioning the title of the garnishee by reason of his laches in delaying for twenty months to take any steps to collect his judgment against the Presse Company while the garnishee was expending time and money in disposing of the mortgaged property. It is true the plaintiff permitted the garnishee to take possession of the mortgaged property and dispose of it, but we cannot perceive how his delay or silence should estop him from insisting upon his rights. The garnishee is only bound to answer for property in his hands, belonging to the judgment debtor, which, should be applied to the payment of the latter’s debt. Upon the facts of this case the garnishee cannot hold the property of the Presse Company under his chattel mortgage, as against the plaintiff. This is what we have already intimated. Why should the plaintiff be estopped from
The affidavit for the garnishment was in aid of an execution under sec. 2753, R. S., as amended by ch. 286, Laws of 1S85, and states that an execution had been issued on the judgment against the Presse Company which had not been returned. It is objected here, for the first time, that no proof was made of the issuing of the execution, and it is insisted that the proceeding should be dismissed for that reason. We think the objection comes too late. The fact that an execution had been issued was not contested in the court below, no question seems to have been made upon it where the proof could have been supplied and the objection obviated, and it ought not now to prevail. The statement in the affidavit that an execution had been issued which had not been returned was sufficient to sustain the jurisdiction of the court over the proceeding, and the plaintiff was not called upon to prove it unless the fact was contested or challenged in some proper manner in the trial court. It is unnecessary to remark that the filing of the mortgage in November, 1884, could not affect or defeat the plaintiff’s rights which originated in the previous June, when he received his notes. The county court found, upon the evidence, that the garnishee had in his possession and under his control property, money, credits, and effects of the Presse Company, or the proceeds of the sale thereof, sufficient to pay the plaintiff’s claim, and this accords with the facts proven. This disposes of all the material questions in the case.
By the Court.— The judgment of the superior court is affirmed.