Eureka Steam-Heating Co. v. Sloteman

• Decision Date: 03 November 1886
• Citation: 67 Wis. 118,30 N.W. 241
• Parties: EUREKA STEAM-HEATING CO. v. SLOTEMAN AND ANOTHER.
• Court: Wisconsin Supreme Court

67 Wis. 118

30 N.W. 241

EUREKA STEAM-HEATING CO.

v.SLOTEMAN AND ANOTHER.

Supreme Court of Wisconsin.

November 3, 1886.

Appeal from county court, Milwaukee county.

November 9, 1885, this action was commenced in the county court for Milwaukee county against the defendant Sloteman alone, and certain property, appraised at $2,294.35, attached, upon an affidavit therein, in substance as follows: “H. L. D. Kelley, being duly sworn, says that he is the agent of the above-named plaintiff, and makes this affidavit on its behalf and at its request; that the above-named defendant is indebted to the said plaintiff in a sum exceeding fifty dollars, to-wit, in the sum of $1,337.86, as near as may be, over and above all legal set-offs, and that the same is due upon contract express; that this deponent has good reason to believe, and verily does believe, that the defendant has assigned, conveyed, disposed of, or concealed, or is about to assign, convey, dispose of, or conceal, his property, or a part thereof, with intent to defraud his creditors;” that the claims of the plaintiff against said Sloteman, as alleged in the complaint therein, were for $677.50, due upon a draft upon said Sloteman, and accepted by him, and $660.36, for a balance due for goods sold and delivered to him at his request by the plaintiff.

November 10, 1885, Sloteman made a general assignment for the benefit of his creditors to the defendant Moss. November 28, 1885, upon an affidavit of Moss stating the fact of such attachment and assignment, and that several persons had been garnished in said action, and upon an order to show cause to the contrary, if any, it was, in effect, ordered by the court that said Moss be made a party defendant, with leave to defend this action, and the several garnishee proceedings therein, and to traverse the attachment, and extending the time for him to do so until December 12, 1885. November 30, 1885, the defendant “Moss, by way of special answer and traverse” to said affidavit of attachment, upon information and belief, denied “each and every allegation therein contained, and the existence, at the time of making” the affidavit, “of all the material facts stated therein, * * * except the alleged liability, and the amount thereof.” November 30, 1885, the defendant “Sloteman, by way of special answer and traverse” to said affidavit, denied “each and every allegation therein contained, and the existence, at the time of the making” thereof, “of all the material facts stated therein, * * * except the alleged liability, and the amount thereof.” Said Kelley made an amended or additional affidavit in support of said attachment, served on defendant's attorney December 2, 1885, stating, in effect, in addition to the facts set forth in his former affidavit, that he made the affidavit for and on behalf of the plaintiff, and at its request and as its agent, and that the defendant Sloteman fraudulently contracted the debt or incurred the obligation respecting which this action is brought, and that the foregoing facts existed at the time of this attachment.

December 9, 1885, Sloteman answered the complaint in the action, admitting,in effect, that there was due the plaintiff, at the commencement of the action, upon the draft, $650, with interest from October 10, 1885, and for goods, May 12, 1885, $229.80, and September 5, 1885, $261, and September 17, 1885, $42, less the $13.44 for goods returned, mentioned in the complaint; and that the further sum of $141 of said account had not yet become due when the action was commenced. February 6, 1886, upon motion of the plaintiff, and upon an order, based upon the records in the action, to show cause why Sloteman should not satisfy so much of the plaintiff's demand as was by his answer admitted to be due, and after hearing of the parties, it was ordered by the court that the said motion be denied, without costs and without prejudice to the plaintiff, to which the plaintiff excepted. March 11, 1886, “the defendant Moss, by way of special answer and traverse to the amended affidavit of attachment,” denied, “upon information and belief, each and every allegation therein contained, and the existence, at the time of making the affidavit, * * * of all the material facts stated therein, * * * except the alleged liability, and the amount thereof,” and at the same time and in the same language, except it was upon his own knowledge, the defendant Sloteman answered and traversed said amended affidavit. Thereupon the issues on such traverses were tried by the court, and, the court having found for the defendants on said issues, the plaintiff thereupon, and on March 12, 1886, notified the defendants in writing to the effect “that the plaintiff appeals to the supreme court of Wisconsin from the order of the above-named court made on the eleventh day of March, 1886, dissolving, dismissing, or vacating the attachment herein, and from the whole and every part thereof;” and, further, that the defendant “be and appear before the above-named court on the thirteenth day of March, 1886, * * * for the purpose of having the court fix the amount of the undertaking which the plaintiff shall be required to give to continue the attachment herein, pending such appeal;” and thereupon, and on motion of the attorney for the defendants, it was, March 13, 1886, “ordered that said defendant have judgment on said traverses, discharging and vacating said writ, and the same is hereby discharged and vacated; and it is further ordered that the property attached, pursuant to said writ, and the moneys realized from the sale of the same, be forthwith delivered up to the said defendant Phillip Moss, * * * and that the damages be assessed and the costs taxed against the plaintiff as provided by law,”--to which the plaintiff excepted. The court thereupon fixed the amount of the undertaking to be given on appeal at the sum of $1,000, and thereupon, and on March 15, 1886, the plaintiff's attorney served on the attorney for the defendants an undertaking on such appeal, in the sum so fixed, conditioned, in effect, to pay all costs and damages which might be awarded against it on said appeal, not exceeding $1,000; and also if said judgment or orders so appealed from, or any part thereof, be affirmed, the appellant would pay the amount directed to be paid by said order, or the part of such amount, as to which said orders should be affirmed, if it should be affirmed only in part, and all damages which should be awarded against said appellant on said appeal; and all costs and damages which the respondents might sustain, and to which they, or either of them, should be entitled by reason of the continuance of the said attachment; that on said March 15, 1886, the plaintiff's attorney also served on the attorney for the defendants a copy of the notice of appeal herein already filed with the clerk of said court, addressed to him and said clerk, to the effect that the plaintiff appealed to this court from the following orders of the said county court, to-wit: (1) Said order dated November 28, 1885; (2) said order dated February 6, 1886; (3) said order dated March 13, 1886, and from the whole and every part of said order.

On said notice of appeal the county judge indorsed the following, to-wit:

“Orders Nos. 1 and 2 stricken out because the appeal was only taken from order No. 3, and the undertaking fixed accordingly; the notice of the court not having been brought to said orders 1 and 2 until embraced in this notice, and the undertaking was only fixed with reference to an appeal from order No. 3.

+-----------------------------------------+
                ¦March   15, 1886.¦J. E. MANN, Co. Judge.”¦
                +-----------------------------------------+
                

To which the plaintiff then and there excepted. March 15, 1886, the court also made an order reciting, in effect, that it appearing that the requisite notice of appeal from the order discharging and vacating the attachment, and that the requisite undertaking in the sum fixed by the court, had been served, “ordered that the attachment herein be continued in force pending the appeal, providing the same is diligently prosecuted as provided by law.”

Chas. M. Bice, for appellant, Eureka Steam-heating Co.

Glenway Maxon, for respondents, Sloteman and another.

CASSODAY, J.

1. The notice served on the attorney for the defendants, March 12, 1886, though a portion of it was in the form of a notice of appeal, could not have that effect...