Spitz v. Tripp
| Citation | 56 N.W. 330,86 Wis. 25 |
| Parties | SPITZ ET AL. v. TRIPP ET AL. |
| Decision Date | 26 September 1893 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from circuit court, Sauk county; R. G. Siebecker, Judge.
Action by Samuel Spitz and Herman Landauer, partners as Spitz, Landauer & Co., against J. L. Tabor, defendant, and J. S. Tripp, garnishee. From a judgment against the garnishee, he appeals. Reversed.
The other facts fully appear in the following statement by CASSODAY, J.:
It appears, in effect, from the record, that the principal defendant, J. L. Tabor, was a merchant at Prairie du Sac; that April 11, 1892, he executed a chattel mortgage upon his goods, furniture, and fixtures to the said J. S. Tripp, to secure the payment of $1,900 and interest, and that said mortgage was filed in the office of the village clerk April 12, 1892; that July 25, 1892, the said J. L. Tabor executed another chattel mortgage on said personal property to James H. Forrester & Co. to secure the payment of $224.65, and that said mortgage was filed in said clerk's office July 26, 1892; that the said J. L. Tabor continued in the possession of said goods from April 11, 1892, to July 26, 1892, and to sell goods covered by said mortgages therein, as retail merchant, and using the money obtained from such sales for his own use; that July 26, 1892, the said J. S. Tripp took possession of all of said property unsold, under his said chattel mortgage, and that the value of the property so taken by him was $6,830.85, and that he retained the same until September 10, 1892, except that the said J. L. Tabor demanded his $200 exemption therefrom, and he was allowed to take the same therefrom as exempt property, leaving of said property in the possession of said J. S. Tripp $6,630.85; that July 28, 1892, the said J. L. Tabor executed another chattel mortgage to Amanda Oertel upon all of the goods, wares, and merchandise then in the store lately occupied by him, but then in the possession of said Tripp, subject, however, to the two other mortgages already mentioned, to secure the payment of $400 and accrued interest, which said mortgage was filed in said village clerk's office July 29, 1892; that the said J. L. Tabor was a married man when he made said mortgages, respectively, and that his wife failed to sign any of them; that August 31, 1892, the said J. L. Tabor gave to the said J. S. Tripp a writing whereby he authorized and empowered him, for and in his place, upon the sale of said property, and after first applying a sufficient amount of the proceeds thereof to satisfy his own mortgage, and the costs and expenses of the care of the goods and of such sale, from the surplus of the proceeds thereof to pay and discharge, first, the said mortgage to Forrester & Co., and then the said mortgage to Oertel, and with the balance of the proceeds of such sale to pay and discharge certain debts therein named, aggregating the sum of about $1,700; that September 10, 1892, the said J. S. Tripp sold, assigned, and transferred his interest in and to said chattel mortgage so given to him as...
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...part payment of the bona fide private debt secured by the mortgage, and had been mingled with other moneys. The cases of Spitz v. Tripp, 86 Wis. 25, 28, 56 N. W. 330,Jones v. Kosing, 92 Wis. 55, 65 N. W. 732, and Salter v. Bank, 97 Wis. 84, 72 N. W. 352, have fully settled the rule, for thi......
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