Espenhain v. Meyer

Taylor, J. There was no question made upon the hearing of this appeal but that, upon a proper showing, the appellants had the right to intervene and have issues awarded, in order to try the question as to the priority of the liens of the appellants and respondents upon the money in the hands of the sheriff arising from the sale of the property attached by them in their respective actions. It was alleged by the parties that the court below refused to grant the issues as prayed for on the sole ground that the statements made in the petition and in the amended petition did not make out a case which made it imperative upon the court to award the issues as prayed for. The power of the circuit court to award issue to try the respective rights of parties having liens by attachment or judgment and execution upon the property of the same de [384] fendant, when such property has been sold and the money arising from such sale is in the hands of the sheriff or when it has been paid over by him to the cqurt, is well established by the decisions of this court. See Breslauer v. Geilfuss, 65 Wis. 377; Nassauer v. Teelmer, 65 Wis. 388; Powers v. Large, 69 Wis. 621. The like practice has been adopted in other courts. See the cases cited in the opinion in Nassauer v. Techner, 65 Wis. 392. See, also, Drake, Attach m. §§ 273 et seq. It will be seen by an examination of the matters stated in the petition of the interveners, that the ground upon which they rely to have their attachments declared a prior lien to that of the respondents is not that the common defendant was not indebted to the respondents on account of goods'sold and delivered by them to such defendant, but, admitting such sale and delivery and indebtedness, they allege that there was nothing’ due to the respondents at the time of, the commencement of their action and the issuing of their attachment. This would be a good ground for the intervention of the appellants, under the decisions of the courts of those states in which a proceeding by attachment cannot be commenced except upon a debt due at the commencement of the action. Ayers v. Husted, 15 Conn. 504; Walker v. Roberts, 4 Rich. Law, 561; Patrick v. Montader, 13 Cal. 434; Davis v. Eppinger, 18 Cal. 378; Henderson v. Thornton, 37 Miss. 448; U. S. Emp. Co. v. Lucas, 36 Ind. 361; Lytle v. Lytle, 37 Ind. 281; M'Cluny v. Jackson, 6 Grat. 96; Hale v. Chandler, 3 Mich. 531; Ward v. Howard, 12 Ohio St. 158; Drake, Attachm. §§ 274, 275. These authorities, it seems to us, can have no force in this state, where it is expressly provided by statute that a creditor whose debt is not due may proceed by attachment (ch. 233 and ch. 256, Laws of 1880), when such creditor proceeds by attachment in the manner provided by said chapters. It is very clear that the interveners do not charge that [385] the respondents did not sell and deliver goods to the defendant which he had not paid for, and for which he was indebted either to the respondents or to some other person; but they say he was not' indebted to the respondents because they had taken the notes of said defendant for the price of such goods, that the respondents had negotiated such notes, and that they were not yet due. There is no allegation that these notes were transferred to the bank without recourse to the respondents; and the fair presumption is that they were negotiated in the usual way, and that the respondents are liable for their payment when due. TTor is there any allegation in the petition that such notes are not subject to the control of the respondents. It is very clear that, under the decisions of this court, the taking and negotiation of these notes is not a defense to an action for the goods sold and delivered. In the absence of fraud in the transaction between the respondents and the debtor, the taking of the notes was a simple postponement of the day of payment until the notes became due. After the notes became d.ue, the respondents could maintain their action for the goods sold, and could recover in such action by bringing the notes into court and canceling the same. I have made the foregoing statement, not for the purpose of showing that it was an answer to the petition in this case, but for the purpose of showing that the facts alleged in the petition do not show any such fraud on the part of the respondents as would entitle them to a priority, had the respondents seen fit to proceed by attachment for the price of the goods for which notes were in fact taken. But the respondents, in their answer to the allegation of the petition, deny positively that the notes set out in the petition were given for any part of the indebtedness due them from the defendant, upon which their action was based, but that such indebtedness was for other goods sold, to the value of the said $2,200, which had not been paid for, and for which [386] no notes bad been given. Tbe petitioners state, upon information and belief, that there was nothing due tbe respondents from tbe defendant for goods sold and delivered between tbe 1st day of February, 1889, and the 1st day of May, 1889; and tbe information upon which their belief is founded is that they find that, during that period of time, the respondents received of the defendant three notes, payable at a future date,— one for $670.04, dated February 28, 1889; one for $694.07, dated'April 1, 1889; and one for $503.45, dated May 1, 1889. The respondents deny positively that these notes were given for any part of the goods sold upon which they claim an indebtedness from the defendant to them of $2,200, and for which sum their action is brought. The petitioners do not allege any fraud on the part of the respondents, or any collusion on the part of the defendant to give the respondents an unlawful preference over the other creditors for their alleged debt, but, by implication, admit that the respondents have a just claim against the common debtor for nearly $1,900, but which was not due at the time their action was commenced. The petitioners make, at best, a very unsatisfactory showing upon which to claim the relief asked. This is not a proceeding which may be claimed as an absolute right on the part of the petitioners. The whole subject is addressed somewhat to tbe discretion of the equity side of the court; and we think that the le'arned circuit judge did not abuse his judicial discretion in refusing to grant the prayer of the petitioners in this case. If the respondents are, in fact, proceeding to collect a fraudulent claim against the defendant’s property upon which the petitioners have a lien, they have other ample remedies to prevent such fraud; and the refusal of the court to award issues in this proceeding will be no bar to such remedies. By the Court. — The order of the circuit court is affirmed.