First Nat. Bank of Dubuque v. Baker

• Decision Date: 22 March 1887
• Citation: 68 Wis. 442,32 N.W. 523
• Parties: FIRST NAT. BANK OF DUBUQUE v. BAKER, GARNISHEE.
• Court: Wisconsin Supreme Court

68 Wis. 442

32 N.W. 523

FIRST NAT. BANK OF DUBUQUE

v.BAKER, GARNISHEE.

Supreme Court of Wisconsin.

March 22, 1887.

Appeal from circuit court, Crawford county.

This was a proceeding in garnishment against defendants, J. L. Nowlin & Co., and C. W. Baker as garnishee. Baker answered, claiming as assignee of J. L. Nowlin & Co., under a voluntary assignment made by them to him. Plaintiff set up that the assignment was void; but the court found in favor of Baker, and plaintiff appeals.C. S. Fuller, for appellant.

Wilson & Provis, for respondent.

COLE, C. J.

The garnishee claims the property in controversy as assignee under an assignment made by J. L. Nowlin & Co., bearing date August 3, 1885. It is insisted that this assignment is void for various reasons.

First, it is said it purports to give preferences to the claims of employes for wages earned within six months prior to the assignment, which is not permitted since the enactment of chapter 48, Laws 1885. Chapter 349, Laws 1883, expressly authorizes preferences for the wages of laborers and employes earned within six months prior to the making of such assignment; but it is said this provision was modified, or by implication repealed, by the subsequent statute. There is no necessary conflict between the two statutes, and they may well stand together. The law of 1883 allows preferences for the wages of laborers for six months to be given in the assignment itself; while the law of 1885 requires the assignee to first pay the claims of all servants, clerks, and laborers for personal service performed within three months prior to the assignment, whether these claims are preferred in the assignment or not. In other words, this law gives a general preference to this class of claims over all other debts owing by the assignor except those which are expressly mentioned. The latter statute does not profess to repeal the former, and, if it does so, it is by implication. But, considering the scope and object of the two statutes, there is no necessary conflict in their provisions.

Another objection is that the exemption clause in the assignment renders it void. The assignment was made by the members of the firm of all the partnership property and effects of every kind for the benefit of creditors. In the preamble it is stated that all the property is assigned “not exempt to them by the laws of the state of Wisconsin, a schedule whereof is annexed of such exempt property.” In the assignment proper there is no reference to any schedule whatever; but in the schedule containing a list of debts due laborers and employes is what purports to be a claim made and signed by each partner of a quantity of railroad ties as exempt as stock in trade out of the property assigned. But it is an undisputed fact that all the ties mentioned in this claim as being exempt were delivered to the assignee, and none of them have ever been in the possession of either of the members of the firm, nor is there any evidence that any of this property is claimed by them as exempt. Of course, an exemption in favor of a copartnership would be wholly inoperative, (Russell v. Lennon, 39 Wis. 570;First Nat. Bank v. Hackett, 61 Wis. 335, 21 N. W. Rep. 280;) and there is no pretense that the partners ever attempted to sever and set aside any ties as exempt, or even to claim them, but all the ties were delivered to the assignee, and were held by him with the other assigned property until they were taken from his possession by the sheriff on the attachments. So, upon the facts, we think the exemption clause did not invalidate the assignment.

There were a number of facts and circumstances disclosed on the trial which it is claimed showed that the assignment was fraudulent as to creditors. The circuit court in effect held that the evidence was not sufficient to justify the jury in finding that the assignment was fraudulent, and directed a verdict for the defendant. It is insisted that the court erred in this ruling, and that there were several transactions which tended to prove an illegal and fraudulent preference of creditors which should invalidate the assignment, and that the case should have been submitted to the jury. The learned circuit judge gave an opinion which is so clear and satisfactory upon this branch of the case that we cannot do better than make some excerpts from it as expressing our views upon the objections taken to the assignment. The circuit judge says:

“The fraud which is suggested rests upon a few circumstances. First, it is said, and there is proof, that Nowlin, on the twenty-fifth day of June last, received $1,000 from Mr. Linderman at the Bank of Viroqua, and it is suggested that some of this money was retained by him at the time the assignment was made, in fraud of the creditors of the firm of Nowlin & Co. The proof shows that out of the $1,000 received June 25th he paid between $800 and $900 to the miller for flour that the firm had bought, and paid it about the time the $1,000 was received, and that the balance of the money was applied in payment of the debts of the firm before the assignment. Mr. Nowlin has testified to certain specific amounts paid out by him from the $1,305.63 received, amounting, all told, to $781. He says that his memorandum of payments out of that fund, which he...