Freiberg v. Singer

• Decision Date: 20 June 1895
• Parties: FREIBERG ET AL. v. SINGER ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 608

63 N.W. 754

FREIBERG ET AL.

v.SINGER ET AL.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from circuit court, Milwaukee, county; D. H. Johnson, Judge.

Action by Julius Freiberg and others against Bernhard Singer, garnishee. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiffs brought a garnishee action against the defendant Singer, as creditors of Schwartz & Pohlman. The latter, on the 12th of October, 1892, had executed to Singer, in due form of law, a voluntary assignment for the benefit of their creditors. Plaintiffs produced in evidence a judgment in their favor against Schwartz & Pohlman, rendered December 13, 1892, for $2,016.89, and also the assignment to the defendant Singer for the benefit of their creditors. It appeared that the property which passed by the assignment was of sufficient value to pay and satisfy the plaintiffs' judgment, and that the bond of the defendant as assignee of Schwartz & Pohlman was not approved, at the time the assignment was executed and filed with the clerk of the circuit court, by the court commissioner taking the same; and the question was whether the bond was validated so as to make the assignment operative from its date, by chapter 276, Laws 1893. The superior court held the assignment void, because the bond of the assignee had not been approved before he was summoned as garnishee of Schwartz & Pohlman, and gave judgment against him for $2,156.12, damages and costs, from which he appealed.Fiebing & Killiled, for appellant.

Sylvester & Scheiber, for respondents.

PINNEY, J. (after stating the facts).

This action was not tried until after chapter 276, Laws 1893, went into effect. This act provided that the taking and filing of the bond of an assignee by a court commissioner should be deemed to be a sufficient approval thereof, and that “all bonds heretofore taken and filed, as aforesaid, by said court commissioners, are hereby declared to be sufficiently approved, and valid.” The case of Johnson v. Hill (Wis.) 62 N. W. 930, is decisive of this case. It was there held that, as the indorsement of approval by the court commissioner was only required by reason of the statute, the legislature had the power to cure the defect in question by a subsequent enactment. The curative effect of the enactment relates back to the time the bond was delivered and filed with the assignment in the office of the clerk of the circuit court, and perfected the rights of the...