97 Wis. 394 | Wis. | 1897
The following opinion was filed September 28, 1897:
The important questions in this case are five in number, viz.: Eirst. Should the action have been dismissed ■on account of the pendency of the former action? Second. Was the affidavit of attachment fatally defective ? Third. :Should the attachment have been vacated on the merits? Eourth. Does the fraudulent disposition of property by one partner only, justify an attachment against the firm? And, fifth, can there be a personal judgment against the assignee ?
1. The first action was practically discontinued in Feb-xuary, 1894, and the answer alleging its pendency was not made until three months later. The rule is stated in many ■decided cases that a plea in abatement of another action pending must aver the pendency of such former action at the time of the plea, or it will be bad. Hawley v. C., B. & Q. R. Co. 71 Iowa, 717; Phelps v. W. & St. P. R. Co. 37 Minn. 485; Toland v. Tichenor, 3 Rawle, 320. If the fact must be pleaded in order to make a good plea, it must nec•essarily be proven in order to constitute a defense. However, there are cases which state that the pendency of the former action at the time of the commencement- of the sec•ond- is sufficient to abate the second. Le Clerc v. Wood, 2 Pin. 37; Comm. v. Churchill, 5 Mass. 175. Such was, perhaps, the former strict rule; but it is not in accord with modern •decisions, and it was departed from by this court in Bates v. Chesebro, 32 Wis. 594. In the last-named case the strict ■common-law rule was stated, but it was distinctly repudiated, although in somewhat guarded terms and only as applied to the facts of that case. We see no good reason for holding to a rule which is almost sure to sacrifice “ substantial rights of parties to a mere technicality.” Bates v. Chesebro,
2. The affidavit of attachment charged that the defendants “had assigned, conveyed, disposed of, or concealed, or are about to assign, convey, dispose of, or conceal, their property or some part thereof, with intent to defraud their creditors.” It is argued that this affidavit is insufficient, because in the disjunctive. This contention is completely met by reference to the case of Klenk v. Schwalm, 19 Wis. 111, which holds a similar affidavit to be sufficient.
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3. We have examined the printed record carefully, and find ample evidence to sustain the finding of fact to the effect that Yictor Fishbeck withdrew a considerable amount of the partnership funds from the firm, and used it in payment of his own debts, with intent to defraud the firm creditors. This certainly constitutes ground for attachment, within the decisions of this court. Keith v. Armstrong, 65 Wis. 225.
4 Yictor Eischbeck was the active partner, doing all the business of the firm, with his partner’s consent. Under such circumstances, there can be no doubt that the act of the active partner is, in legal effect, the act of both. Keith v. Armstrong, supra. Were it otherwise, there could be no remedy by attachment against such a firm, however fraudulent the acts of the managing partner might be. The case of Evans v. Virgin, 69 Wis. 148, is not applicable. In that case it was held that the act of one partner in fraudulently transferring some of his individual property without the participation of his copartners did not constitute ground for attachment against the firm. The decision is based upon both reason and authority, but it has no bearing on this case,.
5. The judgment provides that the plaintiff “ recover of the defendants $16,077.24” and costs. The assignee is a defendant; so there can be no question but that this judgment is a personal judgment for the entire debt against the as-signee. This was doubtless an oversight, but it is none the less palpably erroneous. As to the assignee it must be reversed. This error would undoubtedly have been corrected without appeal had the matter been called to the attention of the trial court by motion; hence no costs will be allowed on the reversal.
By the Court.— So much of the judgment as adjudges recovery of the indebtedness and costs against the assignee-personally is reversed, without costs, and in all other respects the judgment and the order sustaining the attachment are affirmed, with costs.
A motion for a rehearing was denied November 16, 1897.
