Sanger v. Mellon

51 Wis. 560 | Wis. | 1881

Cassoday, J.

From the facts stated, we are very clearly of the opinion that it was error for the trial court to admit in evidence the record and decree of the United States court in the suit brought by Nowell, assignee, against Sanger and Roehring, for the simple reason that neither Mellon, nor any one whom he represented, was a party to that record or decree. This has frequently been determined by this court, and does not require comment. Schettler v. Brunette, 7 Wis., 197; Adams v. Filer, 7 Wis., 306; Saveland v. Green, 36 Wis., 612.

It does not appear to us that the check was given under any mistake of fact. Sanger, as well as Mellon, knew that the bankrupt court had removed the injunction first obtained, so far as to allow Mellon to proceed and make the amount of his execution out of the property of the bankrupts; and the bankrupt court thereby, impliedly, if not expressly, authorized Mellon to take, sell and dispose of enough of the property to satisfy his execution, and in effect directed Sanger to allow him to do so. The mere fact that Van Vechten, under Mellon's directions, made the sale and paid the proceeds over to Sanger, who paid the same to Mellon, or whether MelloWs levy was good as to third parties, can make no substantial difference. Had Banger set up the facts by way of answer in the Nowell suit, and proved them upon the hearing, it is probable that the decree in equity would have protected him in what he had so done in pursuance of the order of the court of bankruptcy. The failure to make such answer and proof is the only mistake of fact which we are able to discover. Eor that, we do not think Mellon, who had no interest in the matter except as an officer, should be held responsible, especially after he had parted with the money under the apparent sanction of the bankrupt court. The parties all seem to have acted in good faith. The sheriff and his deputy undoubtedly performed their duties as they understood them, and it would seem to be a misfortune that they were not protected; but we are unable to discover why Mr. Mellon, who apparently did his duty, should be made responsible therefor.

By the Court. — The judgment of the county court is reversed, and the cause is remanded for a new trial.