Hanson v. Dunn

Tayloe, J. The real question on the trial of this action was whether the indorsement of the court commissioner upon the copy of the assignment which was filed in the office of the clerk of the court on January 9, 1888, was placed thereon at the time it was filed, on said 9th of January, or whether it was placed thereon after said date, and after all the attachments were levied upon the property in question. We think it is satisfactorily shown that such copy, with the indorsement of the commissioner thereon, was not filed until after the first attachment was levied, as was held by the learned circuit judge on the trial in the court below, and that the defendant was entitled to judgment for the amount of the debt in such attachment, unless it should be held that the assignment was so far perfected — 459 — as to entitle the assignee to hold the assigned property as against the creditors of the assignor, before filing any copy thereof in the office of the clerk, if such copy be filed within a reasonable time after the execution'thereof. The exact time when this indorsement was-made on the copy of the assignment b\r the court commissioner was a disputed fact upon the trial, and under the evidence it was a question of fact for the jury, and not one of law for the court. Upon the hearing in this court, the learned counsel for the appellant contended that the filing of the bond of the assignee and a copy of the assignment, with the indorse-ments thereon, as required by secs. 1695, 1696, R. S., was not a condition precedent to passing .,the title to the as-signee, and that the title passed to the assignee, as against the creditors of the assignor,.upon the execution of the assignment, the acceptance of the trust by the assignee, and giving the bond as required by said sec. 1694, R. S. Were this an original question in this court, and under the amendments to the assignment laws taking from the assignor the the right to prefer any of his creditors by his assignment, there would be great force in the argument presented. We think, however, that this question is res ad judicata in this court; and we do not feel called upon to reverse our former decisions in the construction of these sections, although the later legislation has to some extent better secured the rights of creditors than formerly. In the cases of Scott v. Seaver, 52 Wis. 175; Wadleigh v. Merkle, 57 Wis. 517; Clark v. Lamoreux, 70 Wis. 510; Farwell v. Webster, 71 Wis. 485, it is clearly held that the filing of the bond and the copy of the assignment, with the proper indorsements thereon, in the office of the clerk of the proper court, is a condition precedent to passing the title to the assignee as against the creditors of the assignor. Until the legislature sees fit to alter the rule, we must adhere to these decisions. It was also urged that the filing of the original assign — 460 — ment with the proper indorsements thereon, should be held a sufficient compliance with the statute. That question is not in this case, for two reasons: First, because what is claimed now to have been the original assignment was certified by the assignee to be a copy, and there was no certificate of the court commissioner that it was a true copy, or that the assignee had in his presence indorsed the same; again, it appears that the original was not left upon file, but was immediately removed from the files by the attorney of the assignee. Such a filing cannot be held to be a compliance with the statute. Holding, as we do, that the filing of the copy of the assignment, properly certified and indorsed, as required by secs. 1695,1696, is necessary to complete the assignment, it is clear that the learned circuit judge was right in holding that the defendant was entitled to recover the amount of the debt in his first attachment. As to the right of the defendant to recover for the amount of the other attachments, we must hold that the learned circuit judge committed an error in instructing the jury upon that question. As said above, the evidence as to when the copy with the proper indorsement thereon was on file is conflicting, the plaintiff’s testimony tending to show that the indorsements were on when it was filed, January 9, 1888; and the testimony for the defendant tends to show that, although the copy was filed on the 9th, the indorsement was not made thereon until a later date. In regard to the attachments made after the 9th of January, 1888, the learned judge instructed the jury as follows, viz: ‘•The only question for you to determine is the subsequent attachments which were le.vied on the 11th and 12th, I think. This was after the filing of this copy, or the filing of this paper. And the only question for you to determine is, Was that paper a complete paper, duly certified to by the court commissioner on or before the time that these attachments were levied ? Plaintiff here claims that it was — 461 — complete when filed at 5 o’clock. If that is so, it disposes of this case; but if it was an incomplete copy,— if the court commissioner did not certify to it on that afternoon, but went around and certified to it some subsequent time,— or if this was an incomplete copy when these witnesses that hare been called examined it, if they are eorreet in saying it ivas an incorrect copy until some time the next day,— then, so far as the subsequent attachments, the attachments of Sweet, Dempster <& Go., and Farwell do Go., they would hold in preference to this assignment, because, if this assignment was not good at the time it was filed, it was not made good until after those attachments. 1 donit thinle it could be made good unless they filed a new paper; but, whether that is so or not, it was not made good until after these attachments were served.” Again, the learned judge, in submitting to the jury the question whether the defendant was entitle to recover for the amount of the first attachment or for the amount of all the attachments, says: “That depends upon whether or not this paper that was filed that day was a perfect copy as it appears now,— a completed paper as it is now. If it was, these second attachments can’t hold,— the last two attachments. But if it was changed afterwards, and incomplete when it was filed, then it follows that all the attachments must hold, and you will find the defendant’s interest amounting to $652.86.” The effect of all the instructions to the jury is that if they find that the copy of the assignment filed on the 9th of January, at 5 o’clock p. m., did not have the certificate of the court commissioner indorsed thereon, required by sec. 1696, R. S., then although he may have indorsed such certificate thereon thereafter, and before the second and third attachments were levied, still such attachments would hold in preference to the assignment. In the view the learned court took of the case, if the copy filed on the 9th was imperfect, such imperfect copy could not be made — 462 — perfect by making the proper indorsement thereon, and, in order to make the assignment good, a new copy with the proper indorsements thereon must be filed. This view of the case we cannot sustain. If the imperfect copy may be aided so as to make the assignment good by the filing of a new copy with the proper indorsements thereon, there is no substantial reason for holding that the imperfect copy filed may not be perfected, and have the same effect in perfecting the assignment as to all persons who have not then obtained a lien upon the assigned property. This question was fully considered by this court in the case of Farwell v. Webster, 11 Wis. 485, 486. In that case a copy of the assignment and the assignee’s bond had been filed with the clerk of the court on the 26th of January, but the bond was imperfect for the reason that the sureties on the bond had not justified as required by law, and there were no proper certificates indorsed on the copy of the assignment. Afterwards the bond and copy of assignment were taken from the files of the court. A new bond was given, and the proper certificates indorsed upon a copy of the assignment; and they were filed with the clerk on the 29th of January. This court held that the assignment was good as to all persons claiming an}' interest in the assigned goods by garnishee proceedings commenced after the 29th of January. The chief justice, in his opinion, says: “The assignment was good to transfer the title to the property notwithstanding the defects in the execution of the assignment as originally made; for, while the statute provides that the bond ‘shall, immediately after its execution, together with a full and true copy of the assignment,’ be filed by the officer taking the same in the office of the clerk of the circuit court, yet this language must have a reasonable construction, and was not intended to prevent or preclude the assignee from perfecting his bond without unreasonable delay, when he had failed to comply with — 463 — some requirement of the statute in the first instance. . . . Had the rights of the plaintiffs intervened before a good bond was executed and filed, a different question as to the liability of the garnishee would be presented.” Certainly as liberal a rule should apply to the filing of the copy of the assignment with the proper indorsements thereon, as to the bond, so far as the. assignee is concerned. The bond is a matter which he must give, and be personally responsible for its sufficiency, under the statute. The, indorsements upon the copy of the assignment are a duty imposed upon the court commissioner, and over which the assignee has no direct control. "When the assignee has given the bond required by the statute, delivered it to the court commissioner, and has indorsed upon the copy of the assignment his acceptance of the trust conferred on him therein, and the assignment has been delivered to him, he has done all he is required to do personally in order to make a good assignment; and it then becomes the duty of the officer before whom the assignment is made to file the bond, with a true copy of the original, having indorsed thereon the acceptance of the trust by the assignee, and his certificate that the same is such true copy. This was all done on the 9th of January, 1888, as early as 5 o’clock p. m. The only thing claimed to be lacking in order to make the assignment a valid assignment was the certificate of the court commissioner, required to be indorsed thereon by him by sec. 1696, R. S. Admitting that the assignment was not perfect until this certificate was made upon such copy so filed, there does not seem to be any substantial reason for holding that such indorsement must be made thereon at the exact time of the filing, and, under the authority of the case above cited, we hold that such certificate may be indorsed on such copy so filed after the same was in fact filed, and that when so indorsed the assignment becomes perfected and the title to the assigned property passes to the assignee as to all creditors of the assignor — 464 — who have not then acquired any lien upon such assigned property, either by attachment or garnishment. The circuit court erred in not submitting to the jury the question whether the indorsement of the certificate of the court commissioner upon the copy of the assignment was not made thereon before the second and third attachments were levied on the assigned property, and in directing the jury that, if they found that such certificate was not on such copy of assignment at the time it was filed with the clerk, at 5 o’clock p. m., January 9th, then they should find for the defendant the full amount of all the claims in said attachment actions. By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.