Goll v. Hubbell , 61 Wis. 293 ( 1884 )

The following opinion was filed September 23, 1884:

Okton, J.

The respondents, as garnishees, appeared and answered that the}1- had in their possession certain goods and chattels, credits and effects, belonging to the defendants, and that they held the same by virtue of an assignment made to them jointly by the defendants for the benefit of their creditors. The eighth finding of the circuit court is “ that the affidavit of the plaintiffs, upon which this proceeding is founded, does not charge the defendants Hubbell <fo Wheeloek as being jointly liable as garnishees herein.” Then why did they answer, showing a joint liability under the assignment? The statute (sec. 2753,R. S.)says: “Otherwise the several garnishees shall be deemed severally proceeded against.” This is the only consequence of the affidavit not stating a joint liability. But the garnishees and the parties and’the court did'not so deem, but they were proceeded against as jointly liable by their own answer, and' without any objection whatever. This was a waiver of any such objection to the affidavit. Bevier v. Dillingham, 18 Wis. 529. The only way of taking advantage of any such' defect was for the garnishees to have answered severally that they had not in their several,.separate, and exclusive possession any such property, and they might, perhaps, have been discharged under the affidavit. .But, after disclosing a joint, liability, then to ask for a judgment in their favor on such a ground was too late.

On the trial the appellants objected to the assignment on many grounds, only two of which will be considered, as the assignment was unquestionably void on both of those, grounds.

1. Because the assignment itself is uncertain as to the property assigned. The following exception of the property assigned is made: “Saving and excepting from the effects of this assignment all such articles of household furniture and other effects as are exempt by law from seizure and sale under execution.” The principle violated is that the assignees must show title, or a right to the possession of the identical things held by them, and the things must be specific, and be identified by a sufficient description. The exemptions are a part of any of the property assigned, and the assignment is of a part of any of the' exemptions. They are not. separated so as to be capable of identification or delivery. The property conveyed is uncertain, and remained uncertain when the assignment took effect, if it was valid. A like exception or reservation in a mortgage was held by this court fatal to its validity, in Fowler v. Hunt, 48 Wis. 345. See, also, cases therein cited. There is no difference in respect to assignments or any other instrument by which personal property is conveyed; but in respect to assignments it has been held that such a reservation of exempted property renders the assignment not only void for uncertainty, but also because it is a fraudulent reservation to the assignor, by giving him the right at any time in the future to withdraw by selection a part of the goods assigned. Clark v. Robbins, 8 Kan. 574; Sugg v. Tillman, 2 Swan (Tenn.), 208; Farquhurson v. McDonald, 2 Heisk. 404; Overton v. Holinshade, 5 Heisk. 683.

2. Because the assignees did not, “ before taking possession of the property assigned, and before taking upon themselves any trust conferred upon them by the instrument of assignment, deliver to the county judge or court commissioner of the county, etc., a bond, etc., in a sum not less than the whole amount of the nominal value of the assets of such assignors, which value shall be ascertained by the oath of one or more witnesses and of the assignors,” etc. The only bond delivered to the county judge in this case was one in the penal sum of only $5,000, irrespective of the nominal value of the assets as ascertained in any manner whatever before the assignees took possession of the property and upon themselves the trust conferred upon them by the instrument of assignment. This is indisputable. What was done subsequently to ascertain the nominal value of the assets is immaterial. The assignees had already been clothed with the power to make such a disposition of the property to the injury of the creditors as the statute was designed to prevent. Such a bond as the statute requires is the only security that the creditors have, and the statute is and was designed to be strict and mandatory, and the statute (sec. 1694, E. S.) makes the assignment void unless it is strictly followed in this respect. If we could be allowed to consider as affecting the validity of the bond what was done subsequently, it would be apparent that the penalty of the bond so given was but little more than one half of the nominal value of the assets, and the additional bond given some ten days afterwards,, of the penalty of $4,000, was yet less than the whole amount.

It seems that the nominal value of the assets was subsequently ascertained, by affidavits and inventories, at various amounts.. Such loose methods of an attempted compliance with such an important and imperative statute, after its flagrant violation that has already made the assignment void, cannot be sustained. The creditors had already been hindered and held off by the possession of the assignees and their taking upon themselves the trusts of the assignment. This court has so often and so recently decided that not giving the bond as the statute requires renders the assignment absolutely void, that we cannot treat the question as a new Or open one, or be governed by authorities elsewhere to any different effect. Page v. Smith, 24 Wis. 368; Churchill v. Whipple, 41 Wis. 611; Smith v. McCulloch, 42 Wis. 564; Scott v. Seavar, 52 Wis. 175. The reasons for so holding need not be repeated. The judgment should have been rendered in favor of the plaintiffs for the full amount of their claim, inasmuch as it appears by the finding of the court that there is sufficient money in the hands of the garnishees, the proceeds of the .property so sought to be assigned, for that purpose.

By the Court.— The judgment of the circuit courtis reversed, and the cause remanded with direction to' render judgment in favor of the plaintiffs against the garnishees for the whole amount of their claim against the defendants in this case shown.