Hawes v. Boyd

• Decision Date: 13 October 1885
• Citation: 25 N.W. 21,64 Wis. 152
• Parties: HAWES v. BOYD AND OTHERS.
• Court: Wisconsin Supreme Court

64 Wis. 152

25 N.W. 21

HAWES

v.BOYD AND OTHERS.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Rock county.

The parties litigant are severally creditors of Boyd. Each of them commenced an action against Boyd on a separate demand, and sued out a writ of attachment therein. All of the attachments, seven in number, were levied upon the same property of Boyd. The respondent's attachment was first levied. On his petition the property so attached was sold pursuant to Rev. St. § 2740, and the proceeds of such sale remain in the hands of the sheriff. Each party has prosecuted his action to judgment and has issued execution thereon. The appellants, who are the plaintiffs in six of the attachment suits, moved the court to vacate the attachment of the respondent, Hawes, and to hold the same void as against them, and that the sheriff be directed to apply the proceeds of the sale of the attached property in satisfaction of their several judgments and executions. The respondent filed a counter-motion or petition, asking that such proceeds be first applied in satisfaction of his judgment and execution. The circuit court denied the motion of the appellants, and granted that of the respondent. This appeal is from the order in that behalf. The grounds upon which the validity of the respondent's attachment is denied are stated in the opinion.Carpenter & McGowan, for respondent, George W. Hawes.

Winans, Fethers & Jeffris, for appellants, J. J. Boyd and others.

LYON, J.

1. The moneys in the hands of the sheriff, being the proceeds of the sale of the attached property, are under the control of the court, and doubtless the court may inquire and determine who is entitled thereto, and order the same paid over to the person or persons so entitled. The procedure to that end, in form, is in the action of Hawes v. Boyd, yet, in substance and effect, it is not strictly in that, or in either of the actions against Boyd, but is rather in the nature of a special proceeding growing out of and founded upon all those actions; to which proceeding all the attaching creditors of Boyd (and perhaps Boyd also) are parties. If the respondent's attachment was valid, he is entitled to have his judgment paid first out of such money. If his attachment is not valid, the appellants, the other attaching creditors of Boyd, are first entitled to have the moneys applied in payment of their judgments in due order of priority. Manifestly the appellants may, in some proceeding, litigate and have determined the question of the validity or invalidity of such attachment. Regarding substance rather than mere form, we think they have adopted an effectual procedure to obtain an adjudication of that question. If authorities are required to a proposition so reasonable and just, they may be found cited in the notes to section 275, Drake, Attachm.

2. The validity of the respondent's attachment is impeached on two grounds. These are: (1) The respondent's claim was of such a nature that an attachment could not lawfully issue in an action to enforce it; and (2) the affidavit annexed to the writ is insufficient to authorize the officer to execute such a writ.

1. The cause of action stated by the respondent in his action against Boyd is to the effect that in March, 1884, he delivered to Boyd goods, wares, and merchandise of the value of $7,814.83 to be sold by the latter for him at Janesville; that he (Hawes) agreed to and did furnish Boyd a salesman at his own expense, and agreed to and did pay one-half of the rent of store and one-half the cost of advertising; that Boyd was to pay all the other expenses of making such sale, was to dispose of the stock to the best advantage, and, when sold, was to retain one-half of the net profits accruing from the sale for his services therein, and was to make weekly deposits in a certain bank, to the credit of Hawes, of the money received from such sales. Between March 24 and July 14, 1884, Boyd so deposited $969.15, which is all Hawes ever received on account of such sales. Boyd continued to sell from the stock until December 5, 1884, on which day he absconded from this state.

The complaint concludes with the following averments: “This plaintiff further shows that he is unable to state what, if any, portion of said goods so delivered by this plaintiff to said defendant to be sold as aforesaid, remain unsold; and this plaintiff will be unable to state the exact amount till after he takes an inventory of the goods remaining unsold and belonging to this plaintiff; and this plaintiff further shows that the balance of said goods so delivered to said defendant and remaining unsold, or sold and unaccounted for, is the sum of six thousand eight hundred forty-five 18-100 dollars, with interest from the said fourteenth day of July, 1884.” Judgment is demanded for the sum last named.

It is essential to a valid execution of a writ of attachment that the affidavit annexed thereto should state not only a statutory cause for issuing the writ, but also the amount of the defendant's indebtedness to the plaintiff “as near as may be, over and above all legal set-offs.” Rev. St. 736, § 2731. The statement of the amount of such indebtedness is a most vital one. For the purposes of the execution of the writ it imports absolute verity, because it is not traversable in a proceeding by traverse to dissolve the attachment. Rev. St. 739, § 2745. Such statement is the guide to the officer executing the writ as to the amount of property he ought to seize in order to secure the plaintiff. Hence it is required for the protection of the debtor, and of his other creditors as...