First National Bank v. Geeenwood

79 Wis. 269

• Court: Wisconsin Supreme Court
• Decided: March 17, 1891
• Status: Published

Opinions

The following opinion was filed May 20, 1890:

Lyon, J.

The circuit court of Dane county had no jurisdiction to grant the relief prayed in the petitions of the appellant, the First National Bank of Madison. Cardinal v. Eau Claire L. Co. 15 Wis. 404, and other cases in this court, there cited. Those petitions are only significant because they are incorporated in the petition of the bank to the circuit court of Jefferson county. We may, therefore, dismiss from further consideration the proceedings in the former court.

In substance and legal effect the petition of the bank to the circuit court of Jefferson county was the commencement of an equitable action or proceeding to obtain a fund in the hands of the sheriff of Dane county, which the respondents also claimed. The bank might have intervened in the several attachment suits, and prayed the same relief. Perhaps this would have been the better practice,— possibly the only correct practice,— but it was not resorted to. Yet the circuit court seems to have treated the petition of the bank as such an intervention, and instead of requiring the procedure incident to the commencement of an original action, such as the issuing and service of a summons, formal pleadings, and a regular trial, disposed of the petition sum-márily on affidavits and tbe records in the different actions, thus treating it, so far as the procedure is concerned, as a mere intervention by the bank in the five actions of the respondents, the attaching creditors of the insolvent firm. No objection having been taken to such procedure, we will not determine the question of the regularity thereof, but will dispose of the order appealed from upon its merits.

It should be observed preliminarily, that the rights of the respective parties in the fund in controversy must be determined on equitable principles, and that mere irregularities or defects in the proceedings in the attachment suits, not going to the jurisdiction of the court or the merits of the controversies, are of no importance, and will not be considered. Many such are claimed to exist, and in his argument the learned counsel for the bank has pressed them upon our attention with much earnestness, and at considerable length. We must be excused from considering them in detail, or even stating them, but will proceed directly to the consideration of the questions which go to the merits.

1. We have carefully examined the record in each of the five attachment suits, but fail to' find in any of them any irregularity or defect affecting the jurisdiction of the court to issue the writs of attachment, or the sheriff to serve them. The affidavit annexed to each writ states sufficient grounds for executing the same, and .is a substantial compliance with the requirements of the statute in that behalf. Neither do we discover any inconsistent averments in either affidavit, or any substantial defects in the service or return of the several writs. The existence of the alleged grounds for the attachments cannot be controverted by the bank. The right to do so is given to the attachment debtors alone, and it is entirely competent for them to abstain from interposing traverses, or to waive the same after they have been interposed, as was done in all of the attachment suits. Landauer v. Vietor, 69 Wis. 434, and cases there cited. Hence, in the attachment suits it is a verity that sufficient grounds existed for executing tbe attachments. Moreover, it satisfactorily appears that the claim of each attaching creditor against the debtor firm is an honest one, upon which a writ of attachment may lawfully issue.

2. The two oldest attachments were issued at the instance of the debtors. Both of the creditors in whose behalf they were issued ratified the proceedings in their behalf,-— one of them before the attachment was executed, and the other before any other attachment had been levied upon the property in question. In the absence of fraud (and we do not think any fraud was shown) it was competent for the debtors to prefer those creditors in that manner, and the fact that they thus instigated the attachments does not necessarily render them invalid. Landauer v. Victor, supra.

Moreover, there are three other attachments, aggregating more than the fund in controversy, which the debtors did not instigate, and to the validity of which there seems to be no valid objection. ' These would defeat the petition of the bank, even were the other two held invalid.

3. It is claimed that the attachment creditors waived the lien of their attachments by issuing executions in the ordinary form on their judgments. The executions are in accordance with the requirements of S. & B. Ann. Stats, sec. 2969, subd. 1; that is to say, they command the sheriff to satisfy the judgment out of the personal property of the debtors, and, if sufficient personal property cannot be found, out of the real property belonging to them on the day when the judgment was docketed in the county, or at any time thereafter. Subdivision 2 of the same section provides that, if real estate shall have been attached, the execution may direct a sale of all the interest which the debtor had therein at the time it was so attached, or at any time thereafter. It will be observed that but one form of execution is provided as to personal property, and that form does not specify the time when the lien of the plaintiff accrued. No such process as a special execution against attached personal property is known to our statute. The executions in these cases were in the only form authorized by law. Clearly they covered all the rights in the attached property which the creditors obtained by their attachments, and the execution sale necessarily cut off all liens accruing subsequently to such attachments. We conclude, therefore, that there was no waiver by the respondents of their attachment'liens upon the property in controversy.

4. Costs are given as in an action. This was correct. It has already been said that this proceeding is substantially an original action in equity, commenced by petition, and not a mere intervening motion in each of the attachment suits. Although the court treated the petition as an inter-' vention in each attachment suit, that fact does not change the essential character of the proceeding.

5. In its petition the bank prayed that issues might be formed and tried as to the legality of such attachments and executions of the respondents. This was unnecessary. The material and controlling facts in the case are established by uncontroverted evidence, and no formal issues were necessary.

By the Court.—The order appealed from is affirmed.