Powers v. Powers

• Decision Date: 01 November 1887
• Citation: 69 Wis. 621,35 N.W. 53
• Parties: POWERS v. POWERS AND OTHERS.
• Court: Wisconsin Supreme Court

69 Wis. 621

35 N.W. 53

POWERS

v.POWERS AND OTHERS.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Grant county.

John D. Wilson, for appellant.

Clark & Mills, for respondents.

TAYLOR, J.

The petition of the respondents shows that the appellant obtained a judgment against Frank L. Powers for the sum of $3,463.25 damages, and $23 costs, on the eighth of February, 1886. On the same date execution was issued on such judgment, and placed in the hands of the sheriff of the proper county. On the same day, by virtue of said execution, said sheriff seized upon all the goods and chattels of Frank L. Powers and S. Stone, as partners, and that all the goods and chattels seized upon said execution were the goods and chattels of the said firm of Powers & Stone. The petition further sets forth that the respondents were creditors of the firm of Powers & Stone, for goods theretofore sold to said firm, and that on the eleventh day of February, 1886, they commenced an action against said Powers & Stone, to recover the amount due them; that in said action a writ of attachment was issued against the property of said Powers & Stone, and by virtue of such attachment, the goods and chattels in the hands of said sheriff, by virtue of his levy and seizure upon the execution above mentioned, were duly attached and duly appraised at the value of $2,548.34. The petition further alleges that at the time of the levy of said attachment, the only property owned by Powers & Stone, or by either of them, liable to execution, were the goods and chattels seized by them on such attachment. The petition further alleges that Powers & Stone are both insolvent, and that the execution issued upon their judgment obtained in the attachment action was, on the second day of April, 1887, returned unsatisfied. The petition further sets forth that the sheriff proceeded to sell the property of said Powers & Stone upon the execution issued upon the judgment in favor of the appellant, and upon such sale he realized a large sum of money, more than sufficient to satisfy the judgment of the petitioners, and that such money is still in the hands of said sheriff, who holds the same under the order of the court to be paid over to such party or person as may be entitled thereto. The petition asks for an order of the court, directing the sheriff, or other officer or person having such money, to pay over to the petitioners the amount of their said judgment, etc. They also ask the court to make an order requiring the said Lyman A. Powers, the respondent, to answer their petition. The circuit court thereupon made an order requiring said Lyman A. Powers to answer said petition within 20 days after service of a copy of the order and a copy of the petition upon him.

After the service of such order and petition, the said Lyman A. Powers appeared in court and filed a demurrer to said petition, stating the following grounds of demurrer: “(1) That the court has no jurisdiction of the person of the plaintiff, or defendant, or of the subject-matter set forth in the petition, or of the above-entitled action. (2) That the petitioners have not legal capacity to sue or intervene herein. (3) That there is another action pending between the parties hereto for the same cause. (4) That there is a defect of parties, both plaintiff and defendant, for the reason that Samuel Stone and Ora Richards, sheriff, should be made a party to this proceeding. (5) That several causes of action and grounds for relief have been improperly united. (6) That the petition does not state facts sufficient to constitute a cause of action, or entitle the petitioner to the relief prayed for. (7) That the action was not commenced, or petition filed for leave to intervene, within the time limited by law.” The circuit court overruled the demurrer, and from the order overruling such demurrer the said Lyman A. Powers appeals to this court.

The case presents the following facts in brief: A creditor of one of the partners of an insolvent partnership obtains a judgment against such partner upon his individual indebtedness, and levies upon all the partnership property. A creditor of the partnership commences an action upon a demand due to him from the partnership, before the sale under the execution levy, and attaches the same partnership property for his partnership debt, and afterwards obtains judgment against the partnership. In the mean time, and after his attachment, the sheriff sells the property of the partnership, upon the execution, in favor of the individual creditor, and retains the proceeds of the sale in his hands to be...