Bull v. Christenson , 61 Wis. 576 ( 1884 )

Ltost, J.

The question is whether the plaintiff was, or the execution creditors were, entitled to the balance of $185 remaining in the hands of the defendant after satisfying the execution of the Union National Bank. We have no doubt whatever that the creditors were entitled to the money. The assignment had been adjudged fraudulent and void as to them, and they were entitled to levy their execution upon any unexempt property or money of Fancher, in whoseso-ever hands the same might be found. The plaintiff demanded such balance of the sheriff before this action was brought. ITad the sheriff paid over the money to him on such demand, or had the plaintiff retained it in his hands after the sale of the property, the execution creditors could have reached it by garnishee proceedings. The assignment, being fraudulent, was void as to those creditors who assailed and repudiated it. As against the execution creditors the plaintiff could not retain the money. The same being in the hands of the sheriff, it was undoubtedly competent for him, and it was his duty, to disregard the demand of the plaintiff therefor and apply the money on the executions in his hands.

The affidavits upon which the attachments were issued by the justices were fatally defective, but Fancher appeared to the actions, and the judgments and executions issued thereon are valid. Thus the fact of the invalidity of the attachments becomes entirely immaterial.

When the bill of exceptions herein was settled, it was claimed on behalf of the plaintiff that the justices’ executions were not put in evidence on the trial. The judge said that, “ finding no statement in the reporter’s minutes stating specifically that they were introduced, but distinctly remembering that the same were present at the trial, referred to and examined by witnesses, referred to and discussed by counsel, without intimation or objection that they were not in evidence, and having at the trial and up to the present time supposed that they were in evidence, ánd made findings herein upon that supposition,” he would and did order the executions and returns to be attached to the bill of exceptions, and allowed to be introduced with the same effect as if introduced on the trial.

We are satisfied from the bill of exceptions itself, notwithstanding the omission of the reporter to note the fact, that the executions were properly before the court. At any rate, their existence was abundantly proved by testimony to which no objection was taken. But, however that may be, we think the course adopted by the learned circuit judge was eminently just and proper. ¥e agree with him that “ the circumstances are such as to estop the plaintiff from now claiming that said executions and returns were not offered in evidence.”

By the Court.— The judgment of the circuit court is affirmed.