Eau Claire National Bank v. Macauley

77 N.W. 176, 101 Wis. 304, 1898 Wisc. LEXIS 312

• Court: Wisconsin Supreme Court
• Decided: November 22, 1898
• Status: Published

Opinion

Cassoday, O. J.

It appears from the record that November 4, 189Y, the defendant T. A. Johnson made a voluntary assignment for the benefit of his creditors to the defendant Bobert Macauley, who thereupon duly qualified as such as-signee ; that, within two days prior to the making of such assignment, the plaintiff (or plaintiffs) in each of the four above-entitled actions caused an attachment to be levied upon certain property of said Johnson so_ subsequently assigned. The grounds for each of such attachments, as stated in the affidavit therefor, are to the effect that the above-named T. A. Johnson was indebted to the plaintiff (or plaintiffs) in a sum exceeding $50, to wit, naming the amount as near as might be, over and above all legal setoffs, and that the same was due, or to become due (as the case happened to be), upon an express contract; that the deponent had good reason to believe that the defendant, the said T. A. Johnson, had assigned, conveyed, disposed of, and concealed, and was about to assign, convey, dispose of, and conceal, his property with intent to defraud his creditors; that the deponent had good reason to believe that the defendant T. A. Johnson was about to remove his property out of this state with intent to defraud his creditors. Thereupon, and upon affidavits and records showing such assignment, the assignor and assignee moved the circuit' judge, at his chambers, in each of said causes, to dissolve such attachment, and for an order directing the properly so attached to be delivered to the assignee, but which motion was by said circuit judge, in each of such cases, denied, December 6, 1897. Thereupon the assignor and assignee moved the circuit court, in each of such causes, to set aside such order of the circuit judge at chambers, and to dissolve such attachment, and order the goods attached to be turned over to the assignee. Upon the hearing of such last-named motion, in each of said causes, the circuit court, by written order, denied the same. From each of such orders of the circuit court, so- made in the respective causes, the assignee has brought his appeal to this court.

The regularity of the several attachments is not questioned. Some of the claims were not due when the suit was commenced, but, under the statute, the ground stated for the attachment authorized the same. Sec. 2731, R. S. 1878. The motion to dissolve the attachment in each cause is based wholly upon the recent statute, which declares that “ whenever the property of an insolvent debtor is attached or levied upon by virtue of any process in favor of a creditor, or a garnishment is made against such a debtor, he may, within ten days thereafter, make an assignment of all his property and estate not exempt, for the equal benefit of all his creditors, whereupon all such attachments, levies, garnishments, or other process shall be dissolved and the property attached or levied upon shall be turned over to such assignee or receiver.” Laws of 1897, ch. 334, sec. 3; Stats. 1898, sec. 1694a. In obedience to the prior rulings of this court, the trial court held that such statute, declaring that such attachment, made within ten days prior to such assignment, should be dissolved, operated to impair the obligations of the contract upon which the suit was brought, and which was executed several months prior to that enactment. We are all agreed that the case comes squarely within the rulings of this court and the reasoning of Mr. Justice Pinney in Second Ward Sav. Bank v. Schranck, 97 Wis. 250, and of Mr. Justice Marshall in Peninsular L. & C. Works v. Union O. & P. Co. 100 Wis. 488. My own views are sufficiently expressed in the dissenting opinions in those cases.

By the Oov/rt.— Each of the four orders of the circuit court appealed from is affirmed.