Cribben v. Ellis

• Decision Date: 20 September 1887
• Citation: 69 Wis. 337,34 N.W. 154
• Parties: CRIBBEN AND ANOTHER v. ELLIS, GARNISHEE.
• Court: Wisconsin Supreme Court

69 Wis. 337

34 N.W. 154

CRIBBEN AND ANOTHER

v.ELLIS, GARNISHEE.

Supreme Court of Wisconsin.

September 20, 1887.

Appeal from circuit court, Oconto county.Eastman, Scudder & Mountain, for Cribben and another, respondents.

Ellis, Green & Merrill, for Ellis, appellant.

TAYLOR, J.

The respondent commenced an action upon contract against one W. E. Barlow, on the tenth day of July, 1886. On the commencement of such action the respondents made the statutory affidavit, and obtained a garnishee summons against the appellant, and such summons was served upon the appellant on the tenth day of July, 1886. To this summons the appellant filed his affidavit, as required by the statute, setting forth that on the eighth day of July, 1886, the said W. E. Barlow became and was utterly insolvent; that the claims of his creditors were equally meritorious; and that to prevent the acquirement of any preferences among his creditors, and to secure to them an equal pro rata distribution of his assets among them, and in pursuance of the statutes of this state, the said Barlow, on said eighth day of July, 1886, executed and delivered to the appellant a voluntary assignment of all his property, a copy of which assignment was annexed to said affidavit. The answer then alleges that he gave the proper bond, accepted the trusts conferred by said assignment, and on the same day took possession of all the property of said Barlow, for the purposes mentioned in said assignment. He further alleges, in his answer, that he is informed and believes that the plaintiff in said action claims that the assignment is void because it authorizes deponent to sell on credit; that deponent had no intention when said assignment was made, and now has no intention, of selling said property on credit, but intended and still intends to wind up all matters connected with said assignment in the manner and within the time fixed by the statutes of this state. And the appellant, in his said affidavit, submits the question to the court of his liability as garnishee in the action, etc.

Upon this affidavit issue seems to have been taken, and the case was tried by the court. On the trial the assignment was given in evidence; the bond of the assignee, and his indorsement on the assignment accepting the trust; the indorsement of the county judge on the assignment, as required by the statute; the justification of the sureties on the bond, and their approval by the county judge. A list of the creditors was filed December 27, 1886. An inventory of the property assigned was made and filed July 28, 1886. The respondents gave in evidence the judgment and all the records in the action of the respondents against the said W. E. Barlow, which judgment was by default, and in due form, for the recovery of $1,295.50 damages, and $33.53 costs. The appellant also produced A. Reinhart as a witness, who testified that at the time of executing said assignment and bond he was the county judge of Oconto county, who certified and approved the same, and that he drew the same; that before the execution of said bond the nominal value of the assets of said assignor was ascertained by him, by the oath of said assignor and one Frank Stone, at the sum said bond was executed for, to-wit, $10,000; that the parties requested him to draw an assignment; that he had never drawn one before; that he examined the statute, and took the form from a form-book, supposing it to be sufficient. The evidence of Reinhart was objected to by the respondents. Objection was overruled, and exception taken.

The court finds all the facts set up in the appellant's affidavit, and as established by his proofs at the hearing, and the fact that the respondents obtained judgment against Barlow as stated. The learned judge, by his eleventh finding of fact, found “that the said assignment was made and executed by said W. E. Barlow with intent to hinder and delay his creditors.” And, by his twelfth finding, “that the garnishee herein took possession of said property in good faith, and made a full and fair statement of the facts, as he understood them, in his answer.” He also finds, as conclusion of law, “that all the property in the hands of the garnishee, of which he obtained possession under and by virtue of such assignment, is the property of the defendant Barlow.” To the several findings of fact and conclusions of law the appellant duly excepted. Judgment was rendered against the appellant, subjecting the property in his hands held under said assignment to the payment of the judgment of the respondents against said Barlow. From this judgment he appeals to this court.

It does not appear from the record upon what particular ground, or upon what evidence, the learned circuit judge found as a fact that Barlow made such assignment with the intent to hinder and delay his creditors; but as he at the same time found that the assignee was not guilty of any such intent in accepting the assignment, and taking possession of the property, we are led to the conclusion that the learned judge must have found such intent upon the face of the assignment itself. This conclusion is made certain by the argumentmade in this court by the learned counsel for the respondents in support of the findings of the learned circuit judge. In his brief he claims that the finding of the judge is correct, for the following reasons: First. That the assignment on its face authorizes the assignee to sell the assigned property upon credit. Second. The schedule referred to in the assignment was never made. Third. There was no affidavit of the nominal value of the property assigned. Fourth. The assignor excepted from the operation of the assignment his exempt property, without specifying what said property was. Fifth. There was no inventory of assets. There is no pretense that there was any evidence in the case showing an intent to hinder and delay creditors, except such as can be found on the face of the assignment papers. We will consider the objections made to the assignment in the inverse order of their statement above.

1. The objection that there was no inventory of the assets filed does not vitiate the assignment. Section 1697, Rev. St., which provided that such an inventory should be made and filed within 10 days after the assignment was made, and that a failure to make and file the same should render the assignment void, has been modified by chapter 240, Laws 1883, and chapter 251, Laws 1885. Chapter 240, Laws 1883, provides for an examination of the assignor by the circuit court in relation to his property, business affairs, and creditors; and this furnishes a method of getting at his assets. And chapter 251, Laws 1885, strikes out of said section 1697 the words, “and a failure to make and file such inventory and list shall render such assignment void.” And the section now reads, as amended: “Within twenty days after the execution of the assignment, the assignor shall also make, and file in the office of said clerk, a correct inventory of his assets, and a list of his creditors, stating the place of the residence of each of such creditors, and the amount due to each; which inventory and list shall each be verified by his oath, and have affixed the certificate of the assignor that the same is correct according to his best knowledge and belief; but no mistake shall invalidate such assignment, or affect the right of any creditor.” It seems to us very clear that by this amendment the legislature intended to change the law, and that thereafter the failure or neglect to make and file the inventory and list of creditors, within the time prescribed, should not avoid the assignment. Having repealed that part of the section which declared that such failure or neglect should avoid the assignment, it would be clearly against the intent of the legislature to hold that such failure should still work an avoidance of it. There is, perhaps, another reason why the neglect of the assignor to make such list or inventory would not affect the right of the appellant in this case. It will be seen that when the garnishee summons was served in this case,--viz., the second day after the assignment was made,--if the assignment was good in other respects, the title to the property was vested in the appellant, and he would not be liable upon the garnishee process until his right to the property was divested by the subsequent neglect to make and file the list and inventory. See Farwell v. Gundry, 52 Wis. 271, 9 N. W Rep. 11.

2. It is said, because the assignment is made subject to the assignor's exemptions, it is void. This objection to the assignment does not vitiate it. It was so held by this court in Bates v. Simmons, 62 Wis. 69-76, 22 N. W. Rep. 335;Bank v. Hackett, 61 Wis. 335, 347, 348, 21 N. W. Rep. 280. Upon this point, see, also, the following cases, cited in the brief of the learned counsel for the appellant: Hildebrand v. Bowman, 100 Pa. St. 580; Richardson v. Marqueze, 59 Miss. 80;Hartzler v. Tootle, 85 Mo. 23;Perry v. Vezina, 63 Iowa, 25, 18 N. W. Rep. 657;Rainwater v. Stevens, 15 Mo. App. 544;Brooks v. Nichols, 17 Mich. 38;Rosenthal v. Scott, 41 Mich. 632, 2 N. W. Rep. 909;Knefler v. Shreve, 78 Ky. 297-308;Baldwin v. Peet, 22 Tex. 709-718;Garnor v. Frederick, 18 Ind. 507; Wait, Fraud. Conv. § 326, p. 428.

3. It is urged that the assignment is void because no affidavit of the nominal value of the property assigned is attached to or filed with the papers. This objection is answered by the statute itself. It does not require any affidavit of such value to be made. It is to be ascertained by the oath of the assignor and one other witness. It was so ascertained in this case. See Ball v. Bowe, 49 Wis. 495, 5 N. W. Rep. 909;Burns v. Doyle, 28 Wis. 460.

4. The assignment in its granting clause reads as follows: “The assignor grants, bargains, sells, releases, transfers, and sets over to the party of the second part * * * all and singular all the goods, chattels,...