Toepfer v. Lampert

Winslow, J. Two important questions are presented in this case, namely: (1) Was the assignment void because the officer taking it did not personally take it to the clerk’s office and file it ? (2) Was the sheriff’s return as to the time he made his levy conclusive on the plaintiff in this action. 1. The statute provides (sec. 1695, R. S. 1878) that the as-signee’s bond “ shall immediately after its execution, together with a full and true copy of such assignment, be filed by the officer taking the sarnie in the office of clerk of the circuit court,” etc. It is argued that this provision is strictly mandatory, and that the court commissioner must with his own hand deliver the bond and copy of the assignment to the clerk,-and cannot intrust the same to a messenger. This precise question has not been heretofore decided by this court, though several of the other provisions of secs. 1694-1696,R. S.1878, have been presented, and have uniformly been held mandatory. See Grever v. Culver, 84 Wis. 295, where the authorities are reviewed. In Fuhrman v. Jones, 68 Wis. 497, the commissioner sent the bond and copy of assignment to the clerk’s office by the hand of the assignee, and without his indorsement thereon showing that he was satisfied with the sufficiency of the sureties. Some ten days later the commissioner called at the clerk’s office, and placed his certificate on the bond, but, certain creditors having attached in the meantime, it was held that, as against creditors, title had not been vested in the assignee at the time of the levy of the attachment. There is no discussion in that case as to [468] what effect the fact, aloné, of the failure of the commissioner to personally file the papers was considered to have upon the judgment, and we do not think it can be fairly said that the point was determined in that case. Since these cases were decided, however, a distinct change has taken place in legislative policy regarding the assignment statutes. Under the provisions of sec. 2, ch. 334, Laws of 1897 (now sec. 1694, Stats. 1898), the legislature has made ample provision for the correction of almost every possible error, defect, or informality in the execution or filing of the assignment and accompanying papers. Among other things it is provided that “ no mistake in filing a copy instead of an original, or any like mistake or inadvertent failure to comply with the provisions of the chapter, shall avoid the assignment.” Thus it is manifest that the legislative policy at the present time is distinctly in favor of the carrying out of voluntary assignments, even though some provision of law has not been fulfilled. They are regarded with favor, and every opportunity is now given to make them effectual, even if technically defective. This change of legislative policy is referred to and recognized in Western T. Co. v. Teasdale, 97 Wis. 652; and in Eau Claire G. Co. v. Hubbard, 97 Wis. 661, in which last case it is said that where “ the trend of legislation is such as to show a manifest purpose to secure an equal distribution of the property of insolvents, wherever they in good faith make a conveyance of all their property ynth that intention, the court so far as possible should carry out such legislative policy.” In view of this manifest change of legislative policy, we hold that the manual filing of the assignment papers by a messenger, instead of by the officer, will not avoid the assignment, where it appears, as in this case, that the papers. were in all other respects properly executed and filed in proper time. 2. The fact was undisputed in the case that the assignment [469] papers were filed in the clerk’s office at 1:03 o’clock p. m. The sheriff made his return upon his execution, in which he certified that he levied upon the property at 11:20 o’clock a. m., and it was claimed below and is claimed here that this return is conclusive in this action and cannot be contradicted. The trial court ruled, however, that it was open to contradiction, and much evidence was introduced as to the time when the sheriff’s levy was actually made, resulting in a verdict that it was not made until after the filing of the assignment. The reception of this evidence is now assigned as error. The rule is frequently broadly laid down that the return of a sheriff upon process in his hands as to his official acts properly done thereunder is conclusive upon the parties to the action and their privies, and cannot be collaterally impeached, but must be set aside, if at all, in some direct proceeding brought for the purpose. Murfree, Sheriffs (2d ed.), § 868, and cases cited. The rule is referred to with approval in Knowlton v. Ray, 4 Wis. 288, and recognized as correct in Carr v. Comm. Bank, 16 Wis. 50. But an exception to the rule has been made in the cases of Rape v. Heaton, 9 Wis. 328, and Pollard v. Wegener, 13 Wis. 569, where it is substantially decided that the return may be contradicted when the question of jurisdiction of the party arises, and it may be shown that jurisdiction was never in fact obtained, notwithstanding recitals to that effect in the record. St. Sure v. Lindsfelt, 82 Wis. 346. The principle is that the record is no record unless the party to be bound by it was served with process, and this fact is open to investigation. So, here, it may be admitted that the sheriff’s return as to the time of his levy is conclusive upon the parties to the action and their privies; but the question is, Was the plaintiff a privy ? If the assignment was filed, and he had possession, before any levy was made, then he was not a privy, because his title accrued before the sheriff’s levy, and he would not be bound by anything the sheriff might say in his return. [470] Now, to say that the plaintiff is hound by the return because he is a privy, and that he is a privy because the return says that he is such, is the same circular reasoning which is condemned in Rape v. Heaton, supra. While the rule is that parties and privies are bound by the return, the question as to whether a given person is in fact a privy must be open to investigation, upon the same reasoning that holds that the question of jurisdiction is open. Some exceptions were taken to the charge of the court upon the question as to what acts were necessary to constitute a valid levy. We have examined the charge, and think that it is substantially correct upon the question. It does not seem necessary to insert the charge here. By the Court. — Judgment affirmed. Dodge, J., dissents.