Second Ward Savings Bank of Milwaukee v. Schranck

Pinney, J. The superior court of Milwaukee county,— under and by -virtue of the process of which the property in question was seized,— made an order, pursuant to the provisions of ch. 334, Laws of 1897, dissolving the execution levy, and directing the delivery of said property then in the hands of the sheriff to Schranck, who was the assignee of the defendant Henes for the benefit of his creditors. This order was reversed by the supreme court [97 Wis. 250], and the cause was remanded to the superior court, with directions to cause to be restored to the sheriff of Milwaukee county the property, or its proceeds, turned over by the order of that court to Henry C. Schranck, as assignee of Louis Henes, Jr., to the end that it might be applied in satisfaction of the judgment in favor of the Second Ward Savings Bank of Milwaukee against said Henes, the assignor. In obedience to the decision of the supreme court, the superior court thereupon made an order directing the assignee to cause said property or its proceeds to be so restored by the said assignee to the said sheriff, and applied in satisfaction of the [486] execution, under which, tbe sheriff seized it. Under and pursuant to this order, the said property was sold, and its proceeds were applied as thus directed. It is contended by the appellant bank that the assignee, Schranck, was a wrongdoer, and that he converted the property to his own use, and that the order of the superior court was no protection, and conferred no authority for said sale ef the property and such disposition of its proceeds. The sheriff, it is alleged, surrendered and turned over the said property and its proceeds to the said assignee; and on the 26th of June the superior court made and entered its order authorizing and permitting the assignee to sell said property, and to hold the proceeds in lieu thereof. The assignee subsequently restored and turned over to the said sheriff all and singular the property theretofore turned over by the sheriff to him, and the proceeds thereof, and it was accordingly sold and applied as stated in the answer. It thus appears that the property in question was sold, and its proceeds were properly applied, under and in accordance with the decision of this court and orders made in accordance therewith by the superior court. There can be no doubt but that the supreme court, on said appeal, had jurisdiction of the parties, and of the subject matter of the motion to direct the sheriff to turn over the property he had taken under the execution to the assignee, and to direct the disposition thereof. After reversing the order of the superior court, it remanded the case to that court, with directions to cause to be restored to the sheriff the property he had seized upon the execution, and which had been turned over by him under the order of that court to the assignee of Henes, to the end that it might be applied in satisfaction of the judgment in favor of the Second Ward Savings Bank against said Henes. The property was thus subjected to the authority and jurisdiction of this court, which was exercised under and by virtue of the aforesaid orders of the superior court, which were, in sub [487] stance and effect, orders of the supreme court. There was therefore no lack of authority or jurisdiction for what was done under said orders, and there was no irregularity in procuring an j of the orders in question. The orders under which the sale was thus made and the money so applied have not been reversed or set aside, but are still valid, subsisting orders, and there can be no doubt that they furnish ample protection and justification to the parties who so acted under them. Northwestern Iron Co. v. Land & River Imp. Co. 92 Wis. 487; T. T. Haydock Carriage Co. v. Pier, 78 Wis. 579. It is thus shown that the sheriff and assignee were not wrongdoers, and were answerable only for the proper net proceeds of the sale of the property; and each of them was entitled to proper and reasonable compensation for his services and expenses out of the fund, to be ascertained, taxed, and allowed by or under the direction of the court. It was not competent for either of them to tax and determine the amount to which he was thus entitled. It does not appear that any specific objection was made to the charges for such services and expenditures in the superior court, or any showing whatever on the subject. These matters may be properly examined and determined under the issues joined upon the plaintiff’s petition. Ve perceive no error in the order overruling the demurrer of the plaintiff to the answer of the assignee and respondent to the petition of the plaintiff. By the Court.— The order appealed from is affirmed.