87 Wis. 14 | Wis. | 1894
The proceedings resulting in the entry of the judgment, the issuing and levying of an execution upon the property of the defendants, and the sale thereof by the sheriff, sufficiently appear in the foregoing statement. The order refusing to vacate the judgment and all subsequent proceedings thereon, and to allow the defendants Wilson and Clark to traverse the affidavit for the attachment, is based upon “the affidavits and proofs of the parties.” The affidavits of Wilson and Clark are to the effect that the affidavit for the attachment was wholly and absolutely false and untrue; that the firm of R. F. Wilson & Co. dis
The affidavits on the part of the plaintiffs are to the effect that at the time of the issuing of the attachment Wilson and Clarh were in Europe; that the partnership business was then being conducted by Morrison and Thatcher; that the firm was then insolvent; that several attachments upon the grounds mentioned were issued against the firm about that time, some of which, including one in favor of the Twohy Mercantile Company upon a claim for $3,200, were prior to the plaintiffs’; that Reed, Grace, Rock & Reed were employed by Morrison, in behalf of R. F. Wilson & Co., April 9, 1893; that Grace concluded that the attachment in favor of the Twohy Mercantile Company was void for want of a sufficient bond; that,.upon Wilson's return from Europe, he made some arrangement- with the Twohy Mercantile Company whereby he expected to resume business, and so requested Grace to withdraw the appearance in the case of the Twohy Mercantile Company, and permit judgment to be confessed therein, so as to give that company priority over other creditors; that upon objection being made, and on or about May 1, 1893, all the defendants agreed to make a voluntary assignment; that the same was drawn by Grace, and executed by Clarh, Morrison and Thatcher, but that Wilson finally refused to sign the same, for the reason that the “ Twohy Mercantile Company should have the preference; ” that thereafter Wilson ceased to consult with Eeed, Grace, Eock & Eeed, and consulted and advised with othér attorneys about the matter; that
The attachment was issued upon the grounds that the defendants were each and all nonresidents and had disposed or were about to dispose of their property with intent to defraud their creditors. The affidavits of Wilson and Clark are to the effect that such statement was untrue, but neither of them say that the defendants or any of them were at the time residents of the state, or that no such disposition of firm property with such fraudulent intent had been made or contemplated by the defendants, much less by Morrison and Thatcher, who were in sole charge of the partnership business at the time the attachment was issued. As indicated, Wilson and Clark had knowledge as early as May 1, 1898, that Morrison and Thatcher, and Beed, Grace, Bock & Beed, as attorneys for all the defendants, proposed to conduct the case in a manner unsatisfactory to them,— at least, unsatisfactory to Wilson, and that he had consulted other attorneys about the matter. And yet they took no affirmative action until more than twelve weeks thereafter, and in the mean time judgment had been entered, June 20, 1893, and an execution issued thereon, and all the property of the firm sold on that and four other executions, July 12, 1893.
Assuming that Beed, Grace, Bock & Beed had no authority to withdraw the traverse without the consent of Wilson and Clm-Jc as well as Morrison and Thatcher, yet it was, at most, an irregularity. It did not deprive the court of jurisdiction to enter the judgment, nor the sheriff of authority to make the sale on the five several executions, including the one in this case. The motion to set aside the judgment and the sale was addressed to the equity powers of the court, and rested in its sound discretion. We are constrained to hold that in denying the motion there was no abuse of that discretion, upon the showing made. A
By the Court.— The order of the circuit court is affirmed.
