Second Ward Sav. Bank of Milwaukee v. Schranck

Citation97 Wis. 250,73 N.W. 31
PartiesSECOND WARD SAV. BANK OF MILWAUKEE v. SCHRANCK.
Decision Date22 October 1897
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from superior court, Milwaukee county; G. E. Sutherland, Judge.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Second Ward Savings Bank of Milwaukee against Louis Henes, Jr., in which judgment by confession was entered in the superior court in favor of plaintiff. Henry C. Schranck, as assignee of said defendant, intervened, and moved to vacate the judgment and execution thereunder, and to dissolve the levy. Said assignee also procured an order from the circuit court, in the matter of the assignment of said Henes, directing the sheriff to turn over to the assignee property levied on under execution in favor of said bank against the assignor. From the order of the circuit court the bank appeals, and from the order of the superior court, dissolving the levy, but refusing to vacate the judgment and execution, appeals are taken by the bank and by said assignee. Reversed on the appeals of the bank, and affirmed on that of the assignee.

On the 4th of May, 1897, the plaintiff caused to be entered in the superior court of Milwaukee county a judgment by confession upon a certain promissory note, dated August 15, 1896, in and by which Louis Henes, Jr., promised to pay to the plaintiff or order $24,000 in 30 days from date, with interest at 6 per cent. from the date thereof, and claiming that $24,078.90, for principal and interest, was due thereon. Costs were included in the entry of the judgment, for the amount of $32.20, $25 whereof was for attorney's fees, as costs by statute. Execution was issued upon said judgment, and on the 4th day of May, 1897, the sheriff of Milwaukee county levied upon certain personal property of the defendant, Henes, of the value of about $10,000; and it was made to appear that he still retained the custody thereof, and claimed the right to sell the same, by virtue of said execution. An order was granted, upon the record, documents, etc., in the action, that plaintiff, together with the sheriff of Milwaukee county, show cause, etc., on the 29th day of May, before said court, at the court house, etc., why the judgment in said action, and the execution issued thereunder, should not both be vacated and set aside, and the levy made thereunder dissolved. The order was also based upon the affidavit of Henry C. Schranck, from which it appeared that on the 10th day of May (six days after the entry of said judgment and levy) the defendant, Louis Henes, Jr., made to said Schranck a voluntary assignment of all his property and estate not exempt by law, pursuant to chapter 80 of the Revised Statutes of Wisconsin, and acts amendatory thereof; that said Schranck qualified as such assignee, and was then acting as such; that long prior to the entry of said judgment the said defendant was, and ever since had been, insolvent; and that on the 10th of May, 1897, after the making of such voluntary assignment, and after this deponent had duly qualified, he demanded of such sheriff, in writing, the possession of the property so levied on, but that said sheriff and said plaintiff refused, and ever since refused, to deliver up the same to him as such assignee; that said sheriff proposed to offer for sale and sell the said property on or before Wednesday, the 26th day of May, 1897; that the majority of the creditors of said assignee were nonresidents of the state of Wisconsin; that they were interested in said property, and any sale that might be had thereof, and that the best interests of all such creditors would be promoted, and better bids would probably be procured, provided said sale was postponed for a reasonable time; that, as appeared from the judgment roll in the action, the costs therein were taxed at the sum of $32.20, and allowed, upon the consent of the defendant's attorney, as set forth in his answer; that said costs so taxed and allowed at said sum included an item designated, “Costs by statute, $25,” which the defendant alleged to be grossly excessive, and was included without the authority or consent of the defendant, and in fraud of his rights and the rights of creditors; that, as deponent was informed and believed, the note upon which the judgment was rendered was from time to time renewed, and the time of payment thereof extended, by agreement between the parties to said action, and the last renewal or extension thereof was made April 14, 1897, for a period of 30 days; and that the principal of said note was not due or payable until after the judgment was entered. The plaintiff, afterwards, on the 4th of May, remitted said item of $25 so taxed and included in the judgment, and notified such assignee thereof. Upon the hearing of this motion the court ordered “that by reason of the voluntary assignment by said defendant, made on the 10th day of May, 1897, and within ten days after the property of said defendant was levied upon under the execution issued herein on the 4th day of May, 1897, said levy became, and is hereby declared to be, dissolved, and the said sheriff is hereby directed to forthwith turn over to said assignee, all and singular, the property levied upon by him under said execution, and that the motion of said assignee, in so far as it seeks to dissolve said levy, be, and the same is hereby, granted.” It was further ordered “that said judgment and execution issued thereunder be not vacated nor set aside, but that the same stand, and that the motion of said assignee to vacate or set aside said judgment and execution be denied.” The plaintiff appealed from that portion of the order directing the sheriff of Milwaukee county to turn over to the assignee of the defendant herein property levied upon under the execution issued upon said judgment, and declaring said levy to be vacated. The said Henry C. Schranck, as assignee, etc., appealed from that part of the order of the superior court which denied his motion to vacate and set aside the judgment therein, and the execution issued thereon. On the 18th day of May, 1897, Henry C. Schranck, as assignee of Louis Henes, Jr., obtained an order from the circuit court of Milwaukee county, in the matter of the assignment of said Louis Henes, Jr., requiring the plaintiff in said judgment, the Second Ward Savings Bank, and the sheriff of Milwaukee county, to show cause before said circuit court, at, etc., why they, and each of them, should not be required to deliver and turn over to Henry C. Schranck, as assignee of Louis Henes, Jr., the property and assets levied upon by said sheriff of Milwaukee county under two certain executions issued upon judgments of the superior court of Milwaukee county in favor of said Second Ward Savings Bank against Louis Henes, Jr., and for such other or further order or relief, etc. This order was based upon the petition of said Henry C. Schranck, assignee, stating the execution and delivery to him by said Louis Henes, Jr., of the voluntary assignment of all his property and estate for the benefit of his creditors on May 10, 1897, and that he thereupon duly qualified as such assignee, and had ever since and was then acting as such. The petition further alleged that the assignor, at the time of the assignment, and for many years prior thereto, had been engaged in the business of a wholesale and retail dealer in coal and wood in said city, and that on or about August 15, 1896, said assignor executed and delivered to the Second Ward Savings Bank his promissory note for $24,000, dated that day, and due 30 days after date, together with a warrant of attorney thereto annexed, in the usual form, authorizing the confession of judgment thereon; that on or about November 21, 1896, said assignor executed and delivered to said Second Ward Savings Bank his certain other promissory note for $2,000, with warrant of attorney to confess judgment thereon thereto annexed, in the usual form, payable 60 days after date. The petition further stated that upon the 6th of May, 1897, three days prior to the execution and delivery of said assignment, the Second Ward Savings Bank caused judgment to be entered in the superior court by confession upon said judgment notes as follows, namely, a certain judgment for $24,111.10, damages and costs, and a certain other judgment for the sum of $1,036.53, damages and costs, and that on said 6th day of May, 1897, executions issued on said judgments were delivered to F. G. Isenring, sheriff of Milwaukee county, who on that day levied upon, all and singular, the property of the said assignor, and ever since had and retained the custody of, and claimed the right to sell, the same, by virtue of said executions. It was further stated in said petition that at the time of the execution of said assignment, and the time of the entering and docketing of the said judgments, said Louis Henes, Jr., was insolvent, and that it appeared from his books and papers in the possession of the petitioner, and from statements made by him to petitioner, that said assignor on the 6th day of May, 1897, owed debts to the amount of about $57,000, and that “according to the best knowledge, information, and belief of your petitioner, the assets of said assignor consisted of the divers items therein stated, of the cash value of not to exceed $10,000”; that at the time of the execution and delivery of the said judgment notes said Louis Henes, Jr., was insolvent, and that at the time of the receipt of said judgment notes by said Second Ward Savings Bank it knew, or had reasonable cause to believe, said assignor to be insolvent; and that at the time of the execution and delivery of said assignment, and of the entry of the aforesaid judgments, said assignor was insolvent. It alleged demand by the assignee of the sheriff for possession of, all and singular, the property of the assignor so levied on, under and pursuant to the provisions of chapter 334 of the Laws of...

To continue reading

Request your trial
31 cases
  • Oshkosh Waterworks Co. v. City of Oshkosh
    • United States
    • Wisconsin Supreme Court
    • 26 Febrero 1901
    ...49 Wis. 54, 4 N. W. 1077;Rosenthal v. Wehe, 58 Wis. 621, 17 N. W. 318;Hall v. Banks, 79 Wis. 229, 48 N. W. 385;Bank v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 569;Peninsular Lead & Color Works v. Union Oil & Paint Co., 100 Wis. 488, 76 N. W. 359;Bank v. Macauley, 101 Wis. 304, 77 N.......
  • Kiley v. Chi., M. & St. P. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • 5 Febrero 1909
    ...decisions, in the decisions of the federal Supreme Court, and in the general trend of authority. Second Ward Savings Bank of Milwaukee v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 569;Peninsular Lead & Color Works v. Union Oil & Paint Co., 100 Wis. 488, 76 N. W. 359, 42 L. R. A. 331, ......
  • Kirkman v. Bird
    • United States
    • Utah Supreme Court
    • 14 Mayo 1900
    ... ... v. Barry, 82 U.S. 610; Germania Sav. Bank v. Village ... Suspension Bridge, 54 N.E ... Brochon, 95 F. 82; Bank v. Schranck, 73 N.W ... 31; P. L. & C. Works v. Paint ... ...
  • Frame v. Plumb (In re McNaughton's Will)
    • United States
    • Wisconsin Supreme Court
    • 15 Diciembre 1908
    ...is of the contract so that the invasion of the remedial element necessarily impairs the contract (Second Ward Savings Bank of Milwaukee v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 569;Peninsular Lead & Color Works v. Union Oil & Paint Co., 100 Wis. 488, 76 N. W. 359, 42 L. R. A. 331,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT