First Nat. Bank of Madison v. Hinman

• Decision Date: 06 November 1884
• Parties: FIRST NAT. BANK OF MADISON v. HINMAN AND OTHERS, DEFENDANTS, AND FROST, GARNISHEE. FIRST NAT. BANK OF MADISON v. ROCK RIVER PAPER CO., DEFENDANT, AND HACKETT, GARNISHEE.
• Court: Wisconsin Supreme Court

61 Wis. 335

21 N.W. 280

FIRST NAT. BANK OF MADISON

v.HINMAN AND OTHERS, DEFENDANTS, AND FROST, GARNISHEE.

FIRST NAT. BANK OF MADISON

v.ROCK RIVER PAPER CO., DEFENDANT, AND HACKETT, GARNISHEE.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Rock county.

Sloan, Stevens & Morris, for appellant.

Pease & Ruger, for respondents.

TAYLOR, J.

The appellant brought its action in the circuit court of Rock county upon a bill of exchange, bearing date October 6, 1883, made by the Rock River Paper Company, payable to the order of Hinman, Moody & Co., for the sum of $620.10, at 15 days' sight, which was indorsed by Hinman, Moody & Co. to the appellant. In this action Hinman and others and the Rock River Paper Company were joined as defendants under the provisions of section 2609, Rev. St. 1878. Accompanying the summons and complaint were affidavits of garnishment against George M. Frost, as garnishee of the firm of “Hinman, Moody & Co.,” and John Hackett, as garnishee of the “Rock River Paper Co.” Issues were joined upon the answers of the respective garnishees, and upon the trial of these issues judgments were rendered in favor of the garnishees, and there are separate appeals from such judgments. The respective garnishees claimed to be the legal assignees for the benefit of creditors: Frost, assignee for the benefit of the creditors of Hinman, Moody & Co., and Hackett for the creditors of the “Rock River Paper Co.”

Upon the trial the garnishee Frost introduced in evidence an assignment which he claims was made by “Hinman, Moody & Co.,” of all the property of said firm, for the benefit of the creditors of said firm, and claims to be in possession of the property of said firm by virtue of such assignment. The following is a copy of such assignment:

“This indenture, made and entered into this fifth day of November, A. D. 1883, by and between Sidney C. Moody, of Kansas City, in the state of Missouri, Moses S. Hinman, Judd M. Cobb, and James H. Reigart, of the city of Beloit, in the county of Rock, and state of Wisconsin, copartners, doing business at Beloit aforesaid, under the style and firm name of Hinman, Moody & Co., party of the first part, and George W. Frost, who resides at said city of Beloit, in the county of Rock and state of Wisconsin, party of the second part, witnesseth: Whereas, the said copartnership is indebted to divers persons in divers sums of money, as is more particularly enumerated and set forth in a list of its creditors to be filed in the office of the clerk of the circuit court of the county of Rock, in the state of Wisconsin, within ten days after the execution of these presents, as required by chapter 80 of the Revised Statutes of the state of Wisconsin; and whereas, the said copartnership, party of the first part, has become and is at present unable to pay said indebtedness, and are desirous of providing for the payment thereof by an assignment of all their copartnership property and effects, except such as may be exempted from seizure on attachment or execution by the laws of the state of Wisconsin, for that purpose, as provided by chapter 80 of the Revised Statutes of the state of Wisconsin, entitled ‘Of Voluntary Assignments:’

Now this indenture witnesseth that the said party of the first part, in consideration of the premises, and in consideration of one dollar in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has given, granted, bargained, sold, assigned, conveyed, transferred, and set over, and by these presents do give, grant, bargain, sell, assign, convey, transfer, and set over, to the said party of the second part, and his successors in trust, all and singular, the lands, tenements, hereditaments, and appurtenances, goods, chattels, accounts, promissory notes, bonds, bills, debts, choses in action, claims, demands, property, and effects of every kind and description, real, personal, and mixed, belonging to said copartnership, party of the first part, or in which they as such copartners have any right or interest, or which are held by any person or persons for such copartnership, or in trust for the same, (except such as are exempt from levy and sale under execution, under the laws of the state of Wisconsin,) the same being more fully and particularly enumerated and described in an inventory under the oath of said party of the first part, to be filed by the said party of the first part in the officeof the clerk of the circuit court of the county of Rock, in the state of Wisconsin, within ten days after the execution of these presents.

To have and to hold the same, and each and every part and parcel thereof, unto the said party of the second part, his successors and assigns in trust nevertheless, and to and for the uses, interests, and purposes following; that is to say:

The said party of the second part shall take possession of the property hereby assigned, or intended so to be, and shall, with all convenient diligence, proceed to sell and dispose of the same, as is provided by law, and convert the same into money; and shall also, with all reasonable diligence, collect and receive, all and singular, the debts, dues, bills, bonds, notes, accounts, and balances of accounts, judgments, securities, claims, and demands hereby assigned, and out of the proceeds of said sales and collections shall first pay all wages owing by such copartnership to their laborers, servants, and employes, and earned by them within six months prior to the date hereof, and, out of the residue of such proceeds, make such payment or payments to the creditors of the said party of the first part as shall from time to time be directed to be made by the circuit court, or the judge thereof, as provided by law; and if, after the payment of all costs, charges, and expenses attending the execution of the trust hereby created, and the payment and discharge in full of all lawful debts due and owing by the said party of the first part, of every kind and description, that may have been proved against such copartnership, as provided in said chapter 80 of the Revised Statutes, any part or portion of the proceeds of said sales and collections shall remain in the hands or control of the said party of the second part, or his successors in trust, he shall return the same to the said party of the first part, their successors, heirs, executors, and administrators; and if, after payment in full as aforesaid, there should remain in the hands or possession of said party of the second part, or his successors in trust, any part or portion of the property or effects hereby assigned which shall not have been sold, collected, or converted into money, he shall return, reassign, and redeliver the same to the said party of the first part, their successors, heirs, executors, and administrators, by proper, full, and complete instruments of reconveyance or reassignment.

And in furtherance of the premises, the said party of the first part do hereby make, constitute, and appoint the said party of the second part their true and lawful attorney, irrevocable, with full power and authority to do all the acts and things which may be necessary in said premises to the full execution of the trust hereby created, and to ask, demand, recover, and receive of and from all and every person or persons all property, debts, and demands due, owing, or belonging to the said party of the first part, and to give acquittances and discharges for the same; to sue, prosecute, defend, and implead for the same; and to execute, acknowledge, and deliver all necessary deeds, instruments, and conveyances. And the said party of the first part do hereby authorize the said party of the second part to sign the firm name of the said party of the first part to any check, draft, promissory note, or other instrument in writing which is payable to the order of the said party of the first part, or to sign the firm name of the party of the first part to any instrument in writing, whenever it shall be necessary so to carry into effect the object, design, and purpose of this trust.

The said party of the second part doth hereby accept the trust granted and reposed in him by this instrument, and covenants and agrees to and with the said party of the first part that he will faithfully and without delay execute the trust hereby created, according to the best of his knowledge, skill, and ability.”

The assignee Frost showed that all the requirements of the statute in regard to voluntary assignments have been duly complied with by him as well as by the assignors.

The only questions arising on either of the appeals arise upon the face of the assignments. The appellant claims that the assignment in the case of Hinman, Moody & Co. is void on its face for several reasons: First, because it is claimed that the assignment itself shows that the firm of Hinman, Moody & Co. was composed at the time of the assignment of the following partners, viz., Sidney C. Moody, Judd M. Cobb, Moses Hinman, and James H. Reigart, and that the partner Moody did not execute the assignment; second, that on its face the assignment does not purport to be the assignment of the partnership, but is the assignment of the parties who personally executed the same; third, that it does not purport on its face to convey to the assignee the partnership property; fourth, that it restrains the assignee from paying any debts of the firm until directed to do so by order of the circuit court, and that it only provides for the payment of such debts as shall have been proved against the copartnership, as provided in chapter 80 of the Revised Statutes; and, fifth, that the assignment is void because it reserves to the assignors “such property as is exempt from levy and sale under execution under the laws of the state of Wisconsin.”

The first, second, third, and fifth objections do not apply to the assignment made by the “Rock River Paper Co.” The first...