Oconto Co. v. Esson

Bardeen, J. The point upon which these cases seem to turn is whether .there has been a waiver or discharge of defendant’s attachment lien. At the outset we desire to acknowledge our great indebtedness to the judge who tried this case. He filed a written opinion covering all the questions litigated on the trial. Ilis discussion of the question above mentioned is so exhaustive and so clear that our labors have been very much lessened, and if his conclusions are correct it leaves very little .more to be said on the subject. We have felt at liberty to include the greater portion of his discussion in the statement, to which reference will be made as the questions raised are considered. One of the important questions standing at the door of plaintiffs’ right to recover is whether, by the terms of the settlement between defendant and Coleman, claims not in existence at the time the first action was begun were in fact included in the judgment and are now being enforced against [102] plaintiffs’ lands. Upon the question oí fact the trial judge found in the affirmative, and to the discussion contained in his opinion we are unable to add anything. The stipulation shows conclusively that all the claims and causes of action existing between the parties were considered in one settlement. The surrounding circumstances point with almost unerring certainty to the fact that a large part of defendant’s judgment is made up of claims that had no existence at the time the first action was commenced, and was for the purchase price of the very lands now sought to be relieved from the lien mentioned. The substantial fact found by the court finds most ample support in the evidence produced, and we are content to rest our conclusion upon the discussion contained in the trial judge’s opinion, which meets our entire approval. Counsel for defendant ingeniously argue that plaintiffs, being subsequent purchasers of the land in question, are not protected against amendments or added causes of action; that, having obtruded themselves upon attached property, they are bound by all the results of the litigation within the power of the court to adjudge. To a limited extent this may be true. The statutory remedy by attachment, being summary in character and onerous in its effects, has always been restricted by most guarded rules of construction. Cases are innumerable that, in the absence of a statute authorizing it, a court has no power of amendment of an affidavit for an attachment. Our statute (sec. 2731a) permits amendments only to state “ facts existing at the time of making the former affidavit.” To secure an attachment the affidavit must allege an indebtedness and must specify the amount claimed. The indebtedness must exist at the time it is made. The law does not permit an omnibus affidavit to cover any indebtedness that may come into existence between the parties during the pendency of the litigation. The principle seems clear that an attachment can only be enforced by a [103] judgment for the same claim the attachment was for. The case of Tilton v. Cofield, 93 U. S. 163, is not an authority against this proposition. In that case the plaintiff first declared upon an account, but was subsequently permitted to amend his complaint and affidavit by setting up a promissory note given to balance the same account mentioned in the prior proceedings, and representing the same debt. The decision express^ rests upon the ground that, while the description of the cause of action was changed, yet it was, in view of equity and point of fact, substantially the same with that originally described. The only other case cited -as seemingly running counter to this rule is Nagle v. First Nat. Bank, 51 Neb. 552. The action was commenced on a claim for goods sold, and certain personal property was attached. It was afterwards changed to one for money lent. Subsequent mortgagees insisted that the attachment was thereby dissolved. These mortgagees ivere creditors, and took mortgages, instead of attaching the property. As we grasp it, the case goes upon the fact that the creditors, having taken mortgages pendente lite, are bound by the judgment. It attempts to distinguish the case from Heidel v. Benedict, 61 Minn. 170, on that ground. The result of the ruling seems to be that if creditors attach they would be protected against changes in a prior attachment lien, but if they take mortgages or other security they are not. The distinction is quite too fine. The court disposes of Freeman v. Creech, 112 Mass. 180, by saying that it went upon a statute protecting purchasers from amendments unless they had notice. The statute only protected against an increase of the claim by amendment. The consequences of the inclusion'of such increase in the judgment was to be determined upon general principles of law applicable to the situation. Prior decisions of the court sustained the principal case, and hence the attempt to dispose of the case as an authority failed. Probably the most conclusive reason why the Tilton and Nagle Cases [104] do not apply here is the fact that the claims which were the subject of amendment in those cases existed at the time the attachment was made. Here the claims largely included in the first judgment had no .existence when that suit was begun, and it was never possible to include them in the complaint or in any affidavit of attachment therein. They did not exist until Coleman conveyed the lands, and consequently could never be the basis of the attachment of such lands in any action against him. Counsel for defendant say that, in order to bring this case within the principle of the cases cited by th.e trial judge, there must be some element of fraud involved. If that were necessary, the facts already stated would seem to meet the requirement. Coleman was authorized to make sale of these lands. He did so. Defendant is now seeking to enforce payment of his share of the selling price of those lands in an attachment suit commenced before the sale was made. To permit this to be done would certainly be a fraud on the rights of the subsequent purchasers. Defendant further claims that plaintiffs “had no vested right in any matter of defense or counterclaim.” This contention becomes in a degree irrelevant, in view of the conclusion that there was such an intermingling of valid and invalid claims in the judgment as to constitute in law a waiver or release of the former attachment. Certainly plaintiffs, as intervening purchasers, had some rights which neither defendant nor Coleman could undermine or destroy. Undoubtedly they would be bound by, the judgment, in so far as it was within the issues made or which might legally be made under our practice. But it was not competent for defendant and Coleman by agreement or collusion to destroy rights which had accrued pending the litigation, which were based upon their then existing legal relations. This principle is recognized and discussed in Whitney v. Brunette, 15 Wis. 61, and would seem to be quite .evident without the [105] citation of authority. In Page v. Jewett, 46 N. H. 441, after discussing decisions in other courts, it is said: “ The proper view of the subject seems to be that any increase of the act damnum, any amendment or change in the form of the action, which would be to the prejudice of subsequent attaching creditors, will not be allowed, and any such change made, to the actual prejudice of the rights of such creditors, will dissolve the attachment as against such creditors. It will also discharge bail. The subsequent attaching creditor has a vested right to the excess beyond the amount of the judgment to be rendered upon the writ of the first attaching creditor as it was when served.” Whether in all cases'a subsequent purchaser stands in the same position as an attaching creditor we need not stop to inquire. One thing is certain: Equity will not permit the debtor and attaching creditor to enlarge the amount of the latter’s lien by including matters in the judgment not in existence at the inception of such lien, and thus reduce the residuum of the debtor’s estate. Upon the whole case, we are satisfied with the ultimate conclusion reached by the trial court, and the judgment in •each case must be affirmed. By the Court.— So ordered.