Nick v. Holtz

• Decision Date: 15 April 1941
• Citation: 237 Wis. 407,297 N.W. 387
• Parties: NICK v. HOLTZ.
• Court: Wisconsin Supreme Court

237 Wis. 407

297 N.W. 387

NICK

v.HOLTZ.

Supreme Court of Wisconsin.

April 15, 1941.

Appeal from a judgment of the Circuit Court for Manitowoc County; Henry A. Detling, Judge.

Reversed.

Action in replevin begun April 11, 1939, by George M. Nick, receiver of E. B. Mulick, against Herbert C. Holtz, for the recovery of certain airplanes. There was a judgment in favor of plaintiff. Defendant appeals.

Plaintiff alleges his appointment as receiver of the assets of one E. B. Mulick by a court commissioner in and for Milwaukee County; that on the 12th day of April, 1938, one Harold Kaminsky recovered a judgment against E. B. Mulick in the circuit court for Lincoln County; that Mulick was a resident of Milwaukee County where the judgment was duly docketed November 5, 1938; that execution was issued and returned unsatisfied; that supplementary proceedings were had; that a receiver was appointed and duly qualified; that the two airplanes in question, located at an airport in Manitowoc County, were claimed by the defendant; that the defendant's claim is based upon a pretended chattel mortgage, void and of no force and effect; and that the value of the airplanes is $4,000. Defendant answered denying that the plaintiff was entitled to the possession of the property and that the value was as claimed in the complaint. The cause was tried to the court, which determined that the defendant was entitled to judgment, but further ruling on the question of damages sustained by the defendant was reserved. Thereafter and before judgment was entered, plaintiff asked leave of the court to be heard further and said: “When the matter was originally submitted to the court the plaintiff took the position that the only question involved was the validity of the defendant Holtz's mortgage. Since the cause was submitted and before judgment was entered, the plaintiff submits (that), in view of the fact that the plaintiff, as receiver, was an officer of the court, and the defendant Holtz having levied upon the planes by virtue of his chattel mortgage, that the plaintiff is entitled to judgment in the instant action, not on the strength of his own case, but, rather, on the failure of the defendant Holtz to petition the court which appointed the receiver to give effect to the lien which he claims by virtue of such chattel mortgage.” The court thereafter and on April 3, 1940, ruled that the defendant unlawfully took and detained the two airplanes; that they were worth $2,350 as stipulated; and that the plaintiff was entitled to recover that amount with costs from defendant.

It also appears that subsequent to the first determination announced by the court August 11, 1939, and prior to the decision of April 3, 1940, the defendant sold the airplanes. The judgment finally entered and from which this appeal is taken is in favor of the plaintiff and in the sum of $2,466.52.

FRITZ, J., dissenting.Gold & McCann and Edward A. Rebholz, all of Milwaukee, for appellant.

Frank E. Hebert, of Tomahawk, for respondent.

FAIRCHILD, Justice.

Appellant, acting under the authority of his chattel mortgage of August 22, 1938, recorded March 21, 1939, took possession of the airplanes March 21, 1939. Respondent receiver was appointed and qualified March 6, 1939. It is understood to be a fact, as the circuit court found, that the mortgage of appellant is a valid claim giving the appellant a lien upon this particular property.

The question presented upon this appeal is one of practice rather than of substantive law. As stated by the respondent in his motion made in the replevin action after the validity of the mortgage had been determined, the issue is whether respondent is entitled to the judgment “not on the strength of his own case, but, rather, on the failure of the defendant Holtz to petition the court which appointed the receiver to give effect to the lien which he claims by virtue of such chattel mortgage.”

[1][2] In supplementary proceedings title may not be adjudicated where there is a substantial dispute, the remedy being a suit by the receiver to determine the title. Had appellant been aware of the receivership and in recognition of what may be styled an equitable levy resulting from the appointment of the receiver, sought relief in replevin or some appropriate proceeding in a court of general jurisdiction other than the court of appointment and had the receiver challenged the jurisdiction of that court, we might have before us the proposition now advanced by the respondent. But such is not the case. It is the receiver's duty to raise the objection in limine. Jersey City Welding & Machine Works v. Hudson County White Co., 116 N.J.Eq. 548, 174 A. 516. In the case at bar the receiver chose his own forum, a court having jurisdiction of the subject matter of the proceeding. The real and substantial question was advanced by the issues there made upon the pleadings interposed by the receiver himself. No one has lost any advantage to which he was lawfully entitled.

Authority of the court appointing the receiver was not defied nor was appellant made a party to the proceedings. Appellant insists he had no notice of the supplementary proceedings nor of the appointment of a receiver until after the exercise by him of his right to take possession under the chattel mortgage. That mortgage contained the clause that “in case of any default *** or if the mortgagee shall deem itself insecure *** then said note shall, at the option of the mortgagee without notice, become at once due and payable *** and the mortgagee shall thereupon have the right to take possession of said property.”

[3][4][5] When, in supplementary proceedings, property claimed to belong to a debtor is in the possession of another and such other claims an adverse interest in the property, such interest shall be recoverable only in an action against such person by the receiver, and a transfer or other disposition of such property may be restrained until a sufficient opportunity is given to the receiver to commence the action and prosecute the same to judgment. Sec. 273.08, Stats. Paradise v. Ridenour, 211 Wis. 42, 247 N. W. 472; 2 Wait's Actions and Defenses p. 217, § 32; 4 Pomeroy, Equity Jurisprudence, p. 3597, § 1531. The receiver has some freedom of action in his effort to accomplish the object sought to be reached by his appointment, and if he does not offend against the law he may proceed without securing a rule in court at every step. Approval of the creditor at whose behest he was appointed may be sufficient ratification, should his act be called in question. 23 R.C.L. 79. The court in these proceedings does not undertake to wind up the debtor's affairs. It is clear that in no sense is the procedure a fair liquidation. True, it portions out the debtor's assets among those creditors who are parties to the action, but it does not do so on any basis of equality. Glenn, Creditor's Rights and Remedies, p. 14, § 16.

[6] In a supplementary proceedings case the court commissioner who appointed respondent receiver, having no jurisdiction to try appellant's claim of adverse interest in the property, the receiver by his election to proceed in replevin in the circuit court of Manitowoc County submitted the whole controversy in...