Fischbeck v. Mielenz

Cassoday, C. J. It is conceded that the five judgments against Roth and in favor of the bank became liens upon Roth’s quarter interest in the land in question August 28,. 1896. The important question is whether those judgments were fully paid by the agreements and dealings between the bank and Roth and the bank and Mielenz, who acted, not for himself, but for the benefit of Roth during his life, and after his death for the benefit of Roth’s family, in respect to Roth’s property and services and the judgments. The agreement with Roth, as found by the court, was that, after the bank should realize the amount of its claim or investment, with interest, costs, and expenses, “all the surplus” or balance of the property should be turned over to Roth or his order. The court found that as early as June 28, 1897, the bank had “realized from the sale of such personalty, in the ordinary course of trade, a sum newi'ly equal'to the bank’s demand " while there “still remained on hand and undisposed of” “considerable material, as well as machinery, tools, vats, etc.”' But the court fails to find just how much of the bank’s demand so remained unpaid at that time, or the value of the property then remaining on hand and undisposed of. Under such circumstances the bank, on the day and year last mentioned, turned over to Mielenz all the rest, residue, and remainder of the personal property it had bid in at execution sale, and also agreed “to assign to him upon demand the several judgments” mentioned, in consideration of $400 then paid by Mielenz to the bank. Of course, the property received by him at the time must have been regarded as of equal value, at least, to the $400 so paid. The vice president of the bank, who conducted the principal negotiations with [33] Eoth, testified to the effect that all the bank wanted was to get enough out of the property to pay Eoth’s indebtedness to the bank; that, if there was anything left, the bank was willing to turn it over to Eoth, or tó anybody he might name; that the bank did not agree to satisfy any judgment, but simply agreed that, if the bank should get enough to' pay its debt against Eoth, whatever there was left Eoth could have for himself, his wife, or -his friends; that the bank “agreed to satisfy the debt simply.” He also testified, under sec. 4096, to the effect that the bank received out of the property so taken on execution $11,402.93 net, and that that left a balance of principal due of $507.07, and that to that sum should be added $502.51 interest and certain expenses. It is obvious from the evidence, as well as the findings of the court, that the bank made the agreements and acted as mentioned in good faith, and for the purpose of allowing Eoth and his family to have the benefit of all sales of the property and all the property over and above what was necessary to satisfy its indebtedness against Eoth. The bank only claimed, and Mielenz, as the assignee of the bank, is only entitled to recover, the balance of such indebtedness to the bank over and above what had been realized or received from the property. It is impossible to tell from the record just the amount due the bank, upon a fair accounting, at the time the property was so transferred to Mielenz; and the court made no finding on the question, except as stated. The trial court is the appropriate place for the determination of such questions. The result is that there must be further trial and findings of the court on that question. Brown v. Griswold, 109 Wis. 275, 280, 85 N. W. 363; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 92 N. W. 246, 259; Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W. 969. 2. In view of the findings and evidence mentioned and what has been said, it is hardly necessary to say that the contention to the effect that by the transfer and assignment men [34] tioned the indebtedness secured by tbe judgments, and which had been so nearly paid and satisfied, was thereby revived and made enforceable for the full amount of $12,000 and interest, less the $3,000 which the bank bid in the property for at the execution sale, is without foundation. By such transfers and assignment Mielenz was placed in the position of the bank, and accountable accordingly; but he thereby occupied no better position and secured no superior rights. It is elementary that “the assignee of a chose in action succeeds to all the rights of the assignor, and these rights, whether legal or equitable, will be recognized and protected by courts of law against all persons having notice of the assignment.” 2 Am. & Eng Ency. of Law (2d ed.) 1088. This court has repeatedly held that the assignee of a judgment or chose in action takes it subject to all the equities between the parties. Blakesley v. Johnson, 13 Wis. 530; Rockwell v. Daniels, 4 Wis. 432. 3. It is claimed on the part of Fischbeck that the presentation of the claim secured by the judgments in the assignment proceedings, the favorable report thereon by the referee, the refusal of the court to confirm such report, and the re-reference thereof, and the withdrawal of such claim pending such proceedings, and the entry of an order and judgment therein to the effect that such claim was thereby withdrawn and all proceedings had thereon on the part of the bank be and were thereby dismissed, with costs, should be regarded as res adjudicata against the bank aiid Mielenz, as its assignee. Such is not the law. ' It will be observed that the merits of the claim were not passed upon, much less determined. In such determination a jury trial was, in the discretion of the court, permissible. No “final hearing” or order was ever made thereon. Sec. 1699, Stats. 1898. The withdrawal of the claim simply prevented participation in the estate assigned. See. 1700, Stats. 1898. While the administration of insolvent estates is to a certain extent governed by equi [35] table principles, yet the mere allowance or disallowance of a claim is in the nature of a legal action. In re Sherry, 101 Wis. 11, 16, 17, 76 N. W. 611; Nat. Bank v. Herman, 114 Wis. 582, 91 N. W. 112. The withdrawal of such claim is in the nature of a voluntary nonsuit. Thus it has been held that a judgment is not res adjudicata as to defendants against whom the action was discontinued before verdict. Newell v. Smith, 38 Wis. 39. See, also, Morse v. Stockman, 65 Wis. 36, 26 N. W. 176. Nor where a judgment of dismissal is entered upon a mere stipulation to dismiss. Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075. Even in equitable actions, where the dismissal is not upon the merits, it does not operate as a bar. Spear v. Door Co. 65 Wis. 298, 27 N. W. 60; Richards v. Allis, 82 Wis. 509, 52 N. W. 593. We must hold that the withdrawal of the claim and the action of the court thereon was not res adjudicata. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for further trial and findings as mentioned in this opinion, and for further proceedings according to law.