Wilcox Silver Plate Co. v. Schimmel

• Decision Date: 03 February 1886
• Court: Michigan Supreme Court
• Parties: WILCOX SILVER-PLATE CO. v. SCHIMMEL and others.

26 N.W. 692

59 Mich. 524

WILCOX SILVER-PLATE CO. v. SCHIMMEL and others.

Supreme Court of Michigan

February 3, 1886

Appeal from Muskegon.

Keating & Dickerman, for complainant.

Stephen H. Clink, for Louis Schimmel.

CHAMPLIN J.

The complainant, as a creditor of defendants, filed its bill of complaint, alleging therein, among other things, that the firm of L.W. Schimmel & Co. was composed of Louis W Schimmel, George E. Lovejoy, and Frank Showerman, and was engaged in dealing in crockery, glass-ware, cutlery, and silver-plated ware, at Muskegon, Michigan; that the firm became indebted to the Muskegon National Bank, and, to secure such indebtedness, they executed, on the fifteenth day of April, 1884, a chattel mortgage on their stock of goods; that afterwards the firm made and executed a chattel mortgage to Louis Schimmel, the father of Louis W. Schimmel, dated May 29, 1884, and filed May 31, 1884, covering the stock in trade of said firm, ostensibly to secure the payment of $3,000 that on May 31, 1884, the firm made a general assignment of all their property to Louis Schimmel. It is further alleged that on the ninth of June, 1884, the Muskegon National Bank assigned its mortgage to William Schimmel, of St. Peter Minnesota, who is a brother of said Louis, and who signed his bond as assignee; that on the fourteenth of July said William Schimmel pretended to sell and assign his interest in the chattel mortgage which had been assigned to him by the bank to said Louis Schimmel, who caused the assignment to be recorded, and claims to own the same, and then immediately proceeded to foreclose both of said chattel mortgages by advertisement. They charge that the chattel mortgage to Louis Schimmel is fraudulent and void; that the assignment is also fraudulent; and that the firm or assignee had sufficient money on hand to pay and discharge the bank mortgage; and that the keeping the same in force and foreclosing it is a scheme to injure, cheat, and defraud the creditors. The bill sets up other acts of the defendants which the complainants charge to be fraudulent, but enough has been stated to determine the present controversy appealed to this court. The bill prays that Louis Schimmel may be removed as assignee, and a receiver appointed to carry out the assignment, and he be ordered to transfer to such receiver the property and money of the firm in his hands, and for other relief; also for an injunction restraining the defendants from selling any of the stock of goods under said chattel mortgages, and from proceeding to foreclose the same, or either of them. The bill was filed upon the twenty-fourth of July, 1884, and an injunction was granted as prayed for by the circuit judge on that day, which was duly issued and served upon Louis Schimmel, Louis W. Schimmel, and George E. Lovejoy.

A motion was made to dissolve this injunction, and was overruled. Louis Schimmel answered. Stephen H. Clink is a solicitor in chancery, and was served with a copy of the injunction on the twenty-fifth of July, 1884. On the fifth day of August he appeared before the circuit court and argued the motion to dissolve the injunction. After the motion was denied, he proceeded and sold the stock of goods as the agent of William Schimmel under the power of sale contained in the mortgage given to the Michigan National Bank. He claims that he did not act in doing so as the agent, solicitor, or attorney of defendants, or either of them, but as the agent of William Schimmel, who, he claims, was at all times the owner of said mortgage after the assignment thereof by the bank to him, and that the assignment thereof by William to Louis was done for the purpose of enabling Louis to foreclose and collect the same for William; and that the notes which the chattel mortgage was given to secure were never indorsed by William to Louis, and no title pased by virtue of such assignment. An application was made to the court, based upon affidavit, for an order that Louis Schimmel and Stephen H Clink, one of his solicitors, show cause why they should not be punished for violating the injunction, which was granted. Clink filed his affidavit, making the claim above stated in reference to his connection with the sale. Proofs were also taken, and the court made a decretal order in which, among other things, it was adjudged that said Louis Schimmel and one of his solicitors, Stephen H. Clink, had deliberately violated the injunction theretofore issued in the cause by...