Hempsted v. Wis. Marine & Fire Ins. Co. Bank

• Decision Date: 16 December 1890
• Citation: 78 Wis. 375,47 N.W. 627
• Parties: HEMPSTED v. WISCONSIN MARINE & FIRE INS. CO. BANK.
• Court: Wisconsin Supreme Court

78 Wis. 375

47 N.W. 627

HEMPSTED

v.WISCONSIN MARINE & FIRE INS. CO. BANK.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county.

The provisions of Laws Wis. 1889, c. 385, are as follows: “Sec. 12. Every creditor of such insolvent debtor, whether residing within or without this state, who shall file an affidavit or make other proof of his claim against such insolvent debtor, or who shall accept or receive any dividend from the assignee of such insolvent debtor, or out of the estate of such insolvent debtor, or shall in any way participate in the proceedings under such assignment, shall be deemed to be a party to such proceedings for a discharge of such insolvent debtor from his debts, and the filing of such affidavit, and the making such proof of claim, or the receiving such dividend, or participation in such proceedings, shall be deemed to be, and is declared to be, an appearance in the matter of such assignment and application for a discharge; and the order and discharge made and granted by said court or judge shall be final and binding upon all of the creditors of said insolvent debtor who shall file an affidavit of their claims, or make other proof of the indebtedness of such insolvent debtor, or receive such dividend, or participate in such proceedings, subject to the right of such creditor to appeal from any order, decision, or judgment made or entered in such proceeding in the manner provided by law. Sec. 13. If it shall appear, upon such hearing or trial, that such insolvent debtor has in good faith made a voluntary assignment for the benefit of his creditors, and has in all respects complied with laws of this state in relation to voluntary assignments, and with this act, such court or judge shall grant such insolvent debtor a discharge from his debts, which shall have the effect declared in this act. Sec. 14. Upon the granting of such discharge by said court or judge, the clerk of said court shall immediately enter in the judgment docket of said court against said insolvent debtor, and in favor of each of his creditors who appears, by the list of creditors filed with an assignment of such insolvent debtor, to be a resident of this state, and in favor of each of the creditors of said insolvent debtor whose residence appears by such list to be out of the state, and who has proved his claim against said insolvent debtor under such assignment, or who has appeared in the proceedings under such assignment, or who has received any dividend from the assignee of such insolvent debtor, or out of the estate of such insolvent debtor, or in any way participated in the proceedings under such assignment, or who has appeared in the proceedings for such discharge, for the sum respectively appearing or shown to be due to him, and allowed to him, in the proceedings under such assignment; and shall also enter a discharge thereof upon such docket by order of said court, which shall discharge such insolvent debtor from all personal liability in favor of such of his creditors as shall reside in this state, and such of his creditors as reside out of this state, who have proved their claims against such insolvent debtor in the proceedings on such assignment, or who have received any dividend from the assignee of such insolvent debtor, or out of the estate of such insolvent debtor, or in any way participated in the proceedings under such assignment, or who have appeared in said proceedings for such discharge. The fees of the clerk of said court for docketing and discharging such judgment shall be five dollars.”Finches, Lynde & Miller, for appellant.

Rose & Bell, for respondent.

TAYLOR, J.

This is a proceeding on the part of the respondent to obtain a discharge from his debts under the provisions of chapter 385, Laws 1889. The respondent filed, in the office of the clerk of the circuit court of Milwaukee county, a petition in the form required by section 2 of said chapter 385, which was duly verified, as required by section 3 of said chapter, and, upon filing such petition, an order to show cause was duly made, as required by section 4 of said chapter, and such order was published and served, as required by said section. On the day fixed for the hearing of the petition of said respondent, the appellant appeared and filed objections to the discharge of the petitioner. The objections were as follows: “And now comes the Wisconsin Marine & Fire Insurance Company Bank, by Finches, Lynde & Miller, its attorneys, and, in response to the orders to show cause made in the above-entitled matter, on the 4th day of November, A. D. 1889, why the above-named assignor should not be discharged from his debts, alleges as follows: First. That it is a corporation organized and existing under and by virtue of the laws of the state of Wisconsin. Second. That at...