Goll v. Healy

• Decision Date: 23 September 1884
• Citation: 61 Wis. 293,20 N.W. 674
• Parties: GOLL AND ANOTHER v. HEALY AND OTHERS, DEFENDANTS, AND HUBBELL AND ANOTHER, GARNISHEES.
• Court: Wisconsin Supreme Court

61 Wis. 293

20 N.W. 674

GOLL AND ANOTHER

v.HEALY AND OTHERS, DEFENDANTS, AND HUBBELL AND ANOTHER, GARNISHEES.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Taylor county.Finches, Lynde & Miller, for appellants, Julius Goll and another.

Jones & Sanborn, for respondents, F. A. Healy and others, Defendants, and S. B. Hubbell and another, Garnishees.

ORTON, J.

The respondents, as garnishees, appeared and answered that they had in their possession certain goods and chattels, credits and effects, belonging to the defendants, and that they held the same by virtue of an assignment made to them jointly by the defendants for the benefit of their creditors. The eighth finding of the circuit court is “that the affidavit of the plaintiffs, upon which this proceeding is founded, does not charge the defendants Hubbell & Wheelock as being jointly liable as garnishees herein.” Then why did they answer, showing a joint liability under the assignment? The statute (section 2753, Rev. St.) says: “Otherwise the several garnishees shall be deemed severally proceeded against.” This is the only consequence of the affidavit not stating a joint liability. But the garnishees and the parties and the court did not so deem, but they were proceeded against as jointly liable by their own answer, and without any objection whatever. This was a waiver of any such objection to the affidavit. Bevier v. Dillingham, 18 Wis. 529. The only way of taking advantage of any such defect was for the garnishees to have answered severally that they had not in their several, separate, and exclusive possession any such property, and they might, perhaps, have been discharged under the affidavit. But, after disclosing a joint liability, then to ask for a judgment in their favor on such a ground was too late. On the trial the appellants objected to the assignment on many grounds, only two of which will be considered, as the assignment was unquestionably void on both of those grounds.

1. Because the assignment itself is uncertain as to the property assigned. The following exception of the property assigned is made: “Saving and excepting from the effects of this assignment all such articles of household furniture and other effects as are exempt by law from seizure and sale under execution.” The principle violated is that the assignees must show title, or a right to the possession of the identical things held by them, and the things must be specified, and be identified by a sufficient description. The exemptions are a part of any of the property assigned, and the assignment is of a part of any of the exemptions. They are not separated so as to be capable of identification or delivery. The property conveyed is uncertain, and remained uncertain when the assignment took effect, if it was valid. A like exception or reservation in a mortgage was held by this court fatal to its validity, in Fowler v. Hunt, 48 Wis. 345;S. C. 4 N. W. REP. 481. See, also, cases therein cited. There is no difference in respect to assignments or any other instrument by which personal property is conveyed; but in respect to assignments it has been held that such a reservation of exempted property renders the assignment not only void for uncertainty, but also because it is a fraudulent reservation to the assignor, by giving him the right at any time in the future to withdraw by selection a part of the goods assigned. Clark v. Robbins, 8 Kan. 574; Sugg v. Tillman, 2 Swan, (Tenn.) 208; Farquharson v. McDonald, 2 Heisk....