Sellers v. First Presbyterian Church of West Superior

Wisconsin Supreme Court

Sellers v. First Presbyterian Church of West Superior

64 N.W. 1031, 91 Wis. 328, 1895 Wisc. LEXIS 70

DecidedNovember 8, 1895

StatusPublished

This text of 64 N.W. 1031 (Sellers v. First Presbyterian Church of West Superior) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sellers v. First Presbyterian Church of West Superior, 64 N.W. 1031, 91 Wis. 328, 1895 Wisc. LEXIS 70 (Wis. 1895).

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Opinion

WiNslow, J.

This is an action to foreclose a mechanic’s lien upon the defendant’s church building, brought by the plaintiff, who claims to own the claim for lien by virtue of an assignment from the original contractor. The claim was the property of William A. Boyd & Co., and the allegations which are relied on.to show that the claim was assigned to the plaintiff are as follows: “ That on the 18th day of August, 1892, E. A. Arnold was duly appointed, assignee of W. A. Boyd & Co., and thereafter duly qualified as such as-signee and entered into the discharge of his trust;” and [329]*329that thereafter the said Arnold, as such assignee, duly sold,, assigned, and transferred the claim in question to the plaintiff. A general demurrer to the complaint was sustained on the ground that the complaint does not show any assignment of the claim to the plaintiff.

The ruling was plainly right. The allegation that Arnold was appointed assignee of the firm of Boyd & Co., and qualified as such, cannot be considered as an allegation that Boyd & Co. made a general assignment to Arnold for the benefit of creditors. We may guess that this is what the pleader meant, but the pleading does not say so. No voluntary assignment for the benefit of creditors being alleged, it is clear that the pleading nowhere alleges, either directly or by implication, that Boyd & Co. ever assigned this claim to any one. Such an allegation was essential, and its absence is fatal to the complaint. R. S. sec. 3322.

By the Court.— Order affirmed.

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WiNslow, J.

This is an action to foreclose a mechanic’s lien upon the defendant’s church building, brought by the plaintiff, who claims to own the claim for lien by virtue of an assignment from the original contractor. The claim was the property of William A. Boyd & Co., and the allegations which are relied on.to show that the claim was assigned to the plaintiff are as follows: “ That on the 18th day of August, 1892, E. A. Arnold was duly appointed, assignee of W. A. Boyd & Co., and thereafter duly qualified as such as-signee and entered into the discharge of his trust;” and [329]*329that thereafter the said Arnold, as such assignee, duly sold,, assigned, and transferred the claim in question to the plaintiff. A general demurrer to the complaint was sustained on the ground that the complaint does not show any assignment of the claim to the plaintiff.

The ruling was plainly right. The allegation that Arnold was appointed assignee of the firm of Boyd & Co., and qualified as such, cannot be considered as an allegation that Boyd & Co. made a general assignment to Arnold for the benefit of creditors. We may guess that this is what the pleader meant, but the pleading does not say so. No voluntary assignment for the benefit of creditors being alleged, it is clear that the pleading nowhere alleges, either directly or by implication, that Boyd & Co. ever assigned this claim to any one. Such an allegation was essential, and its absence is fatal to the complaint. R. S. sec. 3322.

By the Court.— Order affirmed.

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Bluebook (online)

64 N.W. 1031, 91 Wis. 328, 1895 Wisc. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellers-v-first-presbyterian-church-of-west-superior-wis-1895.