Shakman v. Schwartz , 89 Wis. 72 ( 1894 )

NewMAN, J.

It is not seriously contended that there was. evidence to sustain the claim that the plaintiff’s attachment was collusive or fraudulent; nor that it was not founded on a genuine bona fide debt for the amount claimed. The evidence abundantly established the good faith and genuineness of the debt and the good faith of the attachment. But it is claimed that the plaintiff’s attachment is void as against the appellant’s attachment, because it appears that the plaintiff’s debt was not due and payable at the time when it was issued and levied, and because it was levied prior toils date. The plaintiff’s claim was for goods sold by him to the defendant the Boston One Price Clothing House, and was due. On the day when the attachment was issued and levied, the Boston One Price Clothing House gave the plaintiff its promissory note, due on demand, for the amount of its indebtedness to him. This was on the 26th day of October, 1893. By a mistake in the calendar day, it was dated October 27, 1893, without intention to postdate it; so that, upon its face, it did not appear that the note was payable on the day when the attachment was issued and levied. It is fila.Tmp.fl that the note so misdated had the effect to postpone the time when the debt became payable to the day succeeding the issue and levy of the attachment, and that for that reason the plaintiff’s attachment is void as against the appellant’s attachment.

It is clear that the objection is merely a technical one, having nothing to do with the justice or equity of the matter involved here. The purpose of the proceeding by intervention in such cases is to have the attached property or its proceeds applied to the payment of the debts of the common debtor in the order of their priority, according to fair legal principles. Ordinarily, the order of priority is the order in which the several attachments have been levied. The fact that the debt for which a prior attachment is issued is not due is in some states good ground for intervention, but it is not in this state. Espenhain v. Meyer, 74 Wis. 379. The fact that the debt is not yet due, it would seem, can be taken advantage of only by the debtor himself. And his failure to take advantage of it could be no wrong .to a subsequently attaching creditor, even if the purpose of the debtor was to facilitate a preference of one creditor over other creditors. Such a preference is not unlawful. Landauer v. Victor, 69 Wis. 434; First Nat. Bank v. Greenwood, 79 Wis. 269. But if, in this case, the plaintiff’s claim was not technically due, that was by reason of an inadvertence merely, and not in accordance with the intention of the parties. To give effect to. the intention of the parties involves no violation of legal principles or of justice and equity.

The same mistake was made in the date of the attachment, papers. The attachment was issued and levied, in fact, on the 26th day of October, 1893. The attachment itself was-dated October 27, 1893. It is claimed that this mistake-makes the attachment void as against subsequently attaching creditors; and decisions are found which are to that effect. Rut that cannot be the law here. The writ is amendable to conform to the facts. The law requires all’writs to run in the name of the state of Wisconsin; to be sealed and dated. R. S. sec. 2121. An attachment is a writ. Chase v. Hill, 13 Wis. 222. Obviously the date is a no more material part of the writ than the seal or that it runs in th& •name of the state. These are all mere matters of form, material only because required by the statute. A writ is not void because it fails to run in the name of the state (Ilsley v. Harris, 10 Wis. 95); nor for want of a seal (Corwith v. State Bank, 18 Wis. 560); nor, by parity of reason, for want of a date or for a mistaken date. The omission of either is an irregularity merely which may be cured by amendment. R. S. sec. 2830. The policy of the statute and of the court, is to save the substance from loss through mere mistake of form. The service of a writ of attachment which is merely irregular, and not void, gives a lien upon the goods attached. The hen is not displaced by an amendment which merely cures a formal mistake. That the date of the writ was a mistake was obvious. The circuit court disregarded the irregularity. It arrived at the same result as by formal amendment. There was no error.

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