Clark v. Bergenthal

• Decision Date: 19 April 1881
• Citation: 52 Wis. 103,8 N.W. 865
• Parties: CLARK v. BERGENTHAL.
• Court: Wisconsin Supreme Court

52 Wis. 103

8 N.W. 865

CLARK

v.BERGENTHAL.

Supreme Court of Wisconsin.

Filed April 19, 1881.

Appeal from circuit court, Milwaukee county.

April 10, 1880, the plaintiff, Clark, recovered judgment against the defendant, Bergenthal, in the circuit court for Milwaukee county, for $711.30, and the same day it was docketed in the office of the clerk of said court. April 12, 1880, execution was issued thereon to the sheriff of said county, in which the defendant then, and at the time of the proceedings hereinafter mentioned, resided, and which execution was, prior to May 5, 1880, returned wholly unsatisfied, and still remained unpaid and unsatisfied. Upon the affidavit of the attorney for the plaintiff in obtaining the judgment, of the facts stated, an order was issued by Hugh Ryan, as court commissioner of said county, May, 8, 1880, reciting the facts stated, and ordering and requiring the defendant to appear before him at his office, May 10, 1880, at 2 o'clock in the afternoon, to make discovery, on oath, concerning his property; and the defendant was thereby forbidden to transfer or make any other disposition of any property belonging to him, not exempt by law from execution, or in any manner interfering therewith, until a further order in the premises. The order and affidavit having been served on the defendant, he appeared in person as required, and also by attorney, and was examined under oath, at length, by the plaintiff's attorney, by and before said commissioner. Upon such examination it appeared, among other things, that there were then pending before commissioner Harrington, in the suit of Lenau & Co. against the defendant, other supplementary proceedings against the defendant, and in which an application had been made for the appointment of a receiver. Commissioner Ryan thereupon ordered that the defendant produce before him, at a time named, certain books, accounts, and papers mentioned, and thereupon the proceedings were held open until the time fixed, when the defendant again appeared, and was further examined by the plaintiff's attorney, and which examinations, after being read to the defendant, were subscribed and sworn to by him, before said Ryan, who certified to the same, and thereupon said proceedings were held open, by consent, to May 28, 1880, at 2 P. M., when the plaintiff appeared by counsel, and requested commisioner Ryan to certify the proceedings to the circuit court, which he did accordingly at said last-mentioned date. Thereupon the defendant made and filed before Commissioner Ryan his affidavit, in effect, that the supplementary proceedings so pending before Commissioner Harrington, in the suit of Lenau and others against him, were commenced November 3, 1879, and in which the defendant was at that date enjoined from disposing of any of his property, and that he had been examined therein, and that said proceedings were still pending when said order was issued by Commissioner Ryan, and that the injunctional order so issued by Harrington was then still in force. May 28, 1880, an order was issued by and out of said circuit court, upon the records and proceedings had, and the examination in the supplemental proceedings therein, and the return of Commissioner Ryan thereon, requiring the defendant to show cause before the court, June 3, 1680, why a receiver of his property should not be appointed therein, and why he should not execute an assignment of all his property, rights, credits, and effects, to such receiver, and such other and further relief as might be just, and that a copy thereof be served on the attorneys for the defendant 24 hours before the hearing. At the time for hearing such motion one of the attorneys for the defendant in the proceedings before Commissioner Ryan appeared specially and objected to the hearing before the court, for the reason that the circuit court had no jurisdiction in said action to appoint a receiver, and the delivery of the property to him; which objection was overruled by the court, and, on exception to the ruling of the court, was then and there duly entered. Thereupon said court entered an order appointing a receiver therein, in pursuance of said order of the court to show cause, from which last order this appeal is brought.E. Mariner and Frank M. Hoyt, for respondent.

Murphy & Goodwin, for appellant.

CASSODAY, J.

The power to administer law, and the power to administer equity, were formerly vested in different tribunals, each having separate and independent jurisdiction. Under that system, when a judgment was recovered in a court of law, and all efforts to collect it by direct methods had failed, such court was powerless to compel discovery of property, money, and things in action secretly held in trust for the judgment debtor. To reach such property, money, or things in action, it became necessary to file a bill in equity in another court of separate and independent jurisdiction. Under our system, the two jurisdictions are merged in the same court, and mere forms of action are abolished, but in substance they nevertheless exist, and are necessarily recognized by courts and lawyers. If the right to file such bill of discovery, or creditor's bill, was lost by the adoption of the Code in 1856, yet it was fully restored by chapter 303, Laws 1860, now embodied in section 3029, Rev. St. Williams v. Sexton, 19 Wis. 42;Winslow v. Douseman, 18 Wis. 456;Gates v. Boomer, 17 Wis. 455. Such creditor's bill can, of course, be brought in the same court where the judgment, which is the basis of the action, was rendered, and the execution returned unsatisfied, or in any other having jurisdiction. In addition to such remedy, the statute gives...