85 Wis. 366 | Wis. | 1893
1. It is contended on behalf of the respondent that, as the finding of the court contains all the facts necessary to charge the garnishee and does not make mention of the general assignment to Ray, and as no exception was taken to the finding, the record does not present any question for review, and the judgment must be affirmed. The facts stated in the bill of exceptions, and the request that the court should rule that the action should have been brought only by the assignee, as well as the exception to the refusal'of the court to so rule or find, have been made and are a part of the record, as well as the finding of the court. The request was substantially to find that upon all the evidence the action could not be maintained, and the exception to its denial presents the question whether upon the whole record the plaintiff was entitled to bring and maintain the action. Although there may be no exception to the finding, an erroneous refusal to find may be excepted to and made available as ground for reversal of the judgment.
2. It is provided by the statute (ch. 80, sec. 1’693, S. & B. Ann. Stats.) that “ the circuit court, or the judge thereof in vacation, shall have the supervision of the proceedings in all voluntary assignments made under the provisions of this chapter, and may make all necessary orders for the execution of the same.” This chapter (ch. 80) provides, in substance, that the assignment, with bond of the assignee, together with an inventory of assets and list of creditors, is to be filed with the clerk of the circuit court of the county where the assignor resides. Notice is to be given of the making of the assignment to all creditors of the assignor
It will be seen from this general statement of the statutes that two general purposes are contemplated and sought to be accomplished, namely, the prohibition of preferences, and. an orderly, systematic administration of fhe estate of the assignor by an assignee under the direction and control of the circuit court, having plenary equity powers which may be exercised in a summary way subject to appeal, and the proceeding may culminate in a discharge of the assignor from his debts. The purpose of the proceeding is to get in all the property and property rights of the assignor, and exercise all the rights of his creditors in respect thereto, and convert the same into money, and distribute the same as equally as may be, through the assignee, under the authority of the court. It would be contrary to the plain purpose and spirit of the law for each individual creditor to attempt to litigate and enforce in his own name rights which the law contemplates shall be litigated and enforced only by or in the name of the assignee. Any other course would be productive of those preferences which the law is designed to prevent in the administration of the estate of the assignor, and would lead to a multi
It'is,’: however, urged that this construction should be’
It is argued that the present case is not within the stat-. nte, because it presents a question of estoppel merely, resulting in favor of the plaintiff by the collusive withholding-of the mortgage from McDonald Bros. to Hogan from the-record, and the case of Standard Paper Co. v. Guenther, 67 Wis. 101, is relied on. But it is evident that the estop-pel in that case was founded on and by reason of fraud. It was held in Hungerford v. Earle, 2 Vern. 261, approved by
We therefore hold that the cause of action in question could be prosecuted only by the assignee, or in his name, for the benefit of creditors. The conclusion at which we have arrived is supported by decisions in other states under statutes of similar scope and purpose (Root v. Potter, 59 Mich. 498; Angeli v. Pickard, 61 Mich. 561; Sweetzer v. Higby, 63 Mich. 13; Minn. Thresher Mfg. Co. v. Langdon, 44 Minn. 39; Baker v. Pottle, 48 Minn. 479), and is not, we think, in conflict with Brown v. Brabb, 67 Mich. 17.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the action as to the appellant Hogan.