Rollins v. Humphrey

Cassodat, 0. J. The plaintiff is a judgment creditor of the alleged firm of ¿T. B. Goss & Co. A. J. Goss was held to be a member of that firm by reason of allowing himself [71] to be held out as such, although he was not, in fact, a member at the time the indebtedness to the plaintiff was incurred. The plaintiff, as such creditor of the firm, seeks by this garnishment to reach the assets assigned by A. J. Goss personally to the defendant Humphrey upon several grounds. 1. It is contended that the answer of the garnishee fails to allege the assignment to himself by A. J. Goss with sufficient particularity to allow proof of the same. It alleges the making of the assignment, that it was in due form of law, and that all conditions required by the statute to give it full effect and validity had been performed, and that he had entered upon the discharge of his duties thereunder, and denies all liability. If the answer was not sufficiently definite and certain, the plaintiff’s remedy was by motion to make it more so.' There is no ground for holding that it was insufficient or demurrable. 2. It is contended that the assignee failed to give such a bond as is required by the statute. E. S. sec. 1694. The bond was signed by Humphrey, as principal, and ninety-five persons, as sureties, including one P. Q. Boyden, whose signature and name in the body of the bond appear to have been erased. The bond was fully approved by the county judge who took the same, as required bj? the statute; and he certified that the property of the sureties therein named was worth, in the aggregate, the sum therein specified. Presumptively, the sureties on the bond were sufficient at the time it was so taken' and filed. Bracken Co. Comm'rs v. Daum, 80 Ky. 388. The erasures mentioned were not such a suspicious circumstance as called for explanation before the bond feould be admitted in evidence. Austin v. Austin, 45 Wis. 523. 3. Another objection to the bond is that there was but one seal or scroll, and that that was opposite the signature of the assignee, Humphrey, the first on the list. It is, undoubtedly, the law that two or more persons may adopt a [72] single seal. Pickens v. Rymer, 90 N. C. 282; S. C. 47 Am. Rep. 521, and cases there cited. See, also, Draper v. Springport, 104 U. S. 501. This is not in conflict with Yale v. Flanders, 4 Wis. 96. The assignment from A. J. Goss to the garnishee, Humphrey, appears to have been valid in all respects. 4. This being so, it is very obvious that, although the plaintiff has the right to prove his claim against J. B. and A. J. Goss, yet the court'very properly held that he had no right to have any part of the same paid out of the estate held by Humphrey, as the assignee of A. J. Goss, as long as any of the individual creditors of A. J. Goss remained unpaid, in whole or in part. This was settled in the case of Thayer v. Humphrey, 91 Wis. 276, 297, 299, and the plaintiff, in the case at bar, appears to have stipulated to abide by that decision. True, the plaintiff has not proved his claim against the assets in the hands of the assignee, Humphrey; doubtless for the reason that the fact is, as found by the trial court, that the indebtedness of A. J. Goss, individually, is more than enough to exhaust all the individual assets of A. J. Goss so in the hands of Humphrey. Besides, it appears that nearly all of such creditors of A. J. Goss, individually, have proved their claims against his estate in the hands of Humphrey, as assignee; and it is very questionable, at least, whether the plaintiff, as a creditor of J. B. Goss'& Co., could destroy or frustrate the assignment, as against the creditors of A. J. Goss, individually, who have thus proved their claims, and hence are estopped from controverting the validity of the assignment,— even had the bond been defective. We perceive no reversible error in the record. By the Court.— The judgment of the circuit court is affirmed.