Lawson v. Stacy

The following opinion was filed March 22, 1892: Cassoday, J. If, before the assignment, the assignor made transfers of his property with intent to give a preference or to defraud any of his creditors, as alleged, then such property was recoverable by the assignee. Batten v. Smith, 62 Wis. 92; Backhaus v. Sleeper, 66 Wis. 72; Batten v. Richards, 70 Wis. 272. If the assignee neglected or failed to perform his duty in such regard, or was incompetent or disqualified, or wasted or misapplied any of the trust estate, [305] then the creditors had the remedy prescribed by sec. 16933, S. & B. Ann. Stats., or by removal and the appointment of another, as prescribed by sec. 1102 as amended. Here each of the several plaintiffs filed and proved his claim as prescribed by statute. Secs. 1698, 1699, B. S. This being so, they are severally estopped from questioning the validity of the assignment. Littlejohn v. Turner, 73 Wis. 113; Boynton F. Co. v. Sorenson, 80 Wis. 594; In re George T. Smith Middlings Purifier Co. 86 Mich. 149. The statute made ample provision for the settlement of the assignee’s account. Sec. 1101 as amended. He was compellable to render his. account and settle the same by order. Ibid. Upon the final settlement of his account the court was thereby required to hear any objections made by any creditor, take such evi--dence as might be proper, and settle and adjust such accounts and his compensation and expenses as such assignee, whether objection thereto be made or not, as may be just; and the statute expressly provides that the order thereupon made by the court “ shall be conclusive upon all parties, including the sureties of the assignee,” subject, however, to the right to appeal as therein prescribed. Sec. 1101. Such order is alleged to have been made in this case, and the same is conclusive upon all creditors who had thus proved their respective claims; and hence cannot be questioned in an independent action by way of a collateral attack, as is here attempted. Magnus v. Sleeper, 69 Wis. 219; In re Baker, 12 Wis. 395. By the Court. — The order of the circuit court is affirmed. Upon a motion for a rehearing, counsel for the appellants stated that this court was mistaken in assuming that there had been a final settlement of the assignee’s accounts and an order of the circuit court thereon which would be conclusive upon all creditors. They also urged, among other things, that this court had misapprehended the object [306] and purposes of the action. The right of action was founded on the principles adjudicated in Geisse v. Beall, 3 Wis. 367; and the relief asked in that case was substantially the same as asked in this, but only an accounting was decreed, which is all that is now asked in this case. The purpose is to enforce the trust and compel an honest accounting, not to attack the assignment on the ground that it was fraudulent as to creditors, although that is asserted in the pleadings. The remedies provided in secs. 1701, 1702, R. S., should not be held exclusive, but merely cumulative. Stafford v. Ingersol, 3 Hill, 38; Renwick v. Morris, id. 621; Clark v. Brown, 18 Wend. 213; Colden v. Eldred, 15 Johns. 220; Scidmore v. Smith, 13 id. 322; Branch Bank v. Tillman, 12 Ala. 214; Greenville & C. R. Co. v. Cathcart, 4 Rich. Law, 89; Sutherland, Stat. Const. 509, sec. 399; State v. Wettstein, 64 Wis. 240; Saddington's Estate v. Hewitt, 70 id. 248. The following opinion was filed May 24, 1892: Cassoday, J. A reargument is asked upon the ground that the opinion filed “is based upon a misconception of the facts, in assuming that there had been a final settlement and adjustment of the assignee’s accounts and an order of the court thereupon made that would be conclusive upon all creditors.” Whether such order had in fact been made was not regarded of any special consequence in the decision of the case, and hence it was inadvertently said that “ such order is alleged to have been made in this case.” As indicated in the opinion filed, the plaintiffs, by proving their claims, were severally estopped from questioning the assignment, and limited to the remedy given by the-statutes therein cited. The fact that these statutes make the order upon final settlement “ conclusive upon all parties, including the sureties of the assignee,” subject only to the right of appeal, indicates pretty clearly that the leg [307] islature intended to make tbe remedy thus given exclusive. Here the plaintiffs had resorted to the statutory remedy; and, after making the discovery alleged, commenced this separate and independent action in equity. To allow such a collateral attack would greatly frustrate the object and purpose of the statutes. It is unnecessary to consider what the rule would be under a different statute. By the Court.— The motion for a rehearing is denied, with $25 costs.