Ball v. Bowe
| Decision Date | 27 May 1880 |
| Citation | 5 N.W. 909,49 Wis. 495 |
| Parties | BALL and another v. BOWE, Garnishee |
| Court | Wisconsin Supreme Court |
Argued May 11, 1880
APPEAL from the County Court of Fond du Lac County.
Blackburn made a voluntary assignment of all his property, not exempt from execution, to Bowe, who took possession of the same. The assignment was in trust for the benefit of the creditors of the assignor, and was made in attempted compliance with the provisions of the statute, R. S., 497, ch. 80. The nominal value of the assigned property was considerably less than the debts of the assignor, as scheduled by him under oath. The assignment specifies three classes of creditors, those of the first and second classes being named in schedules annexed to the assignment. Preference in payment is given to creditors named in the first class over all other creditors, and to those in the second class over those in the third. The third-class creditors are not named. The plaintiffs commenced an action against the assignor, and summoned the assignee as a garnishee. Issue was joined upon his answer, and a trial of such issue resulted in judgment for the garnishee, sustaining the assignment, and dismissing the action. The case is further stated in the opinion. The plaintiffs appealed from the judgment.
Judgment affirmed.
The cause was submitted on the brief of Shepard & Shepard for the appellants, and that of Carter & Thomas and Giffin & Williams for the respondent.
The objections to the validity of the assignment will be considered in their order.
1. Annexed to the assignment is an affidavit of the nominal value of the assets therein assigned, signed by the assignor and one H. E. Blackburn. In the body of the affidavit the assignor and H. E. Elmer are named as the affiants. The notary who signed the jurat testified (under objection) that H. E. Blackburn, who signed the affidavit, was sworn by him to its contents. It is claimed that the affidavit is insufficient because of such misnomer. Whatever might be the effect of the misnomer in the body of the affidavit, were an affidavit of value required we cannot doubt that the value of the assigned property was ascertained by the oath of the assignor and one witness, which is all the statute requires. R. S., 497, sec 1694. As was said in Burns v. Doyle, 28 Wis. 460, in which case a defective affidavit was held to be a valid oath, "the affidavit includes the oath, and may show what facts the affiant swore to, and thus be available as an oath, although it may be entirely unavailable as an affidavit." Page 463. We also think that the testimony of the notary was admissible (but perhaps not essential) to show by whom the oath was made.
2. If proof of the insolvency of the assignor was required (a point not here decided), that sufficiently appears by reference to the verified inventory of his assets and list of his creditors, and the amount due each creditor, filed with the clerk of the circuit court pursuant to section 1697. These show that his indebtedness considerably exceeded the nominal value of his assets, and the fact is at least prima facie evidence of insolvency.
3. The verified list of creditors so filed with the clerk preserved the classification made in the assignment schedules; and the name of a creditor, and the sum due him, not in the schedule annexed to the assignment, is found in the list...
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