Rider-Wallis Co. v. Fogo

• Decision Date: 04 April 1899
• Citation: 102 Wis. 536,78 N.W. 767
• Parties: RIDER-WALLIS CO. ET AL. v. FOGO ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 536

78 N.W. 767

RIDER-WALLIS CO. ET AL.

v.FOGO ET AL.

Supreme Court of Wisconsin.

April 4, 1899.

Appeal from circuit court, Richland county; George Clementson, Judge.

Petition by the Rider-Wallis Company and others against J. W. H. Fogo and others. From an order appointing a receiver of the property of defendant Fogo, the defendants appeal. Reversed.F. W. Burnham and J. J. Fruit, for appellants.

Lewis, Briggs & Dudgeon and H. M. Lewis, for respondents.

CASSODAY, C. J.

This is an appeal from an order of the circuit court dated May 31, 1898, appointing George Wulfing as receiver of all the nonexempt property of J. W. H. Fogo, pursuant to chapter 334, Laws 1897 (section 1694b, Rev. St.), made at the hearing of an order to show cause granted by a county judge April 12, 1898, based upon the petition of three several creditors of Fogo, and to whom he owed debts to the amount, in the aggregate, of $821.94, signed by such creditors, and verified by their attorney, April 8, 1898, alleging, in effect, that they were such creditors; that Fogo's only nonexempt property consisted of stocks of goods and merchandise, and his store furniture, fixtures, etc., and credits and accounts; that March 26, 1898, Fogo, being insolvent, and indebted to divers persons (among others, the State Bank of Richland Center, to which he was indebted $3,057.06), and with intent to give preference to that bank, with his wife executed and delivered to that bank a chattel mortgage upon a portion of such nonexempt property, and duly filed the mortgage on that day; that at other times, within 30 days prior to filing such petition, Fogo committed certain other acts of insolvency, by confessing judgment and making conveyances to certain other creditors to secure preferences,--and prayed for a time and place of hearing, upon notice, and that Fogo might be adjudged to have been insolvent at the time of making the mortgage, and for the appointment of a receiver, and directing Fogo to make and file an inventory of his property and list of his creditors, and for an injunction. The order to show cause having been served on Fogo and the State Bank of Richland Center April 12, 1898, the State Bank of Richland Center made answer to such petition by its cashier filing an affidavit stating, among other things, in effect, that the chattel mortgage was given to secure a bona fide indebtedness evidenced by three notes then actually due, and for the sole purpose of securing the payment thereof; that, after the execution and delivery of the mortgage, Fogo, by agreement with the bank, sold goods from his Boscobel store to the amount of $850, and applied the proceeds thereof as so much paid on such notes and mortgage; that afterwards, and before the order to show cause, Fogo sold to the bank all the property covered by the mortgage in Richland Center at the agreed price of 60 per cent. of its invoice price, and applied the proceeds thereof in payment and satisfaction of a part of the balance due on such notes and mortgage; that the total proceeds of all the property included in the mortgage had been actually applied on such indebtedness of the bank; that none of such transactions were with intent to evade the statutes; and that the bank had no knowledge, at any of the times mentioned, as to whether Fogo was insolvent, or had committed any other acts of insolvency. Fogo did not answer or appear in the proceedings. To such answer of the bank the petitioning creditors demurred ore tenus. By the order appealed from, the court sustained such demurrer, and adjudged that Fogo was an insolvent debtor, within the meaning of the statute, at the time of executing the chattel mortgage, and appointed such receiver, with directions to take and recover all property wrongfully disposed of by Fogo.

If the facts stated in the petition were all established, as required, then there would be no difficulty in holding that the case came within the letter of the statute requiring the appointment of a receiver. Laws 1897, c. 334 (Rev. St. § 1694b). We are met, however, at the threshold of the discussion, with the objection that the statute is in violation of that provision of our state constitution which declares that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.” Const. art. 1, § 5. This court has uniformly held that this language imports that such right must remain as it existed when the constitution was adopted. Klein v. Valerius, 87 Wis. 60, 57 N. W. 1112, and cases there cited. The right is not granted by the constitution, but only secured. Id. This court has gone so far as to hold that the legislature cannot take anything from the original or primary jurisdiction of equity and give it to the law, nor the reverse. Derry v. McClintock, 31 Wis. 195. See, also, Oatman v. Bond, 15 Wis. 20;Truman v. McCollum, 20 Wis. 360;Callanan v. Judd, 23 Wis. 343; Klein v. Valerius, supra. In considering the question of jury trials in lien cases, Mr. Justice Lyon, speaking for the court, said: “It is competent for the legislature, when it gives a new remedy, to prescribe the procedure by which the remedy may be enforced. It may prescribe a purely equitable or a purely legal procedure, or it may blend the two, as it has done, conditionally, in the statute under consideration.” Bentley v. Davidson, 74 Wis. 424, 43 N. W. 139. In England, by statutes relating to bankrupts, a summary jurisdiction was given to the chancellor. 3 Bl. Comm. 428. Certainly there was no right at common law to a jury trial in order to adjudge a man a bankrupt or an insolvent. It has long since been held in Massachusetts, under similar statutes, that “the provision of the insolvent laws which authorizes the issuing of a warrant to take possession of all the estate of a debtor, on the petition of a creditor, without a trial by jury on the...