Thorne v. State Bank of Platteville

Eschweiler, J. The intervenor and appellant, State Bank of Platteville, contends that the circuit court had no jurisdiction of this matter and that the plaintiff, Thorne, had no subsisting lien upon the balance of the stock of goods in the hands of Webster at the time of his death. . Assuming for the purposes of this case that one who, like the State Bank of Platteville, voluntarily petitions to become a party to a lawsuit then pending in a court can, after so intervening, properly be heard to assert that the very court to which it applied for leave to intervene is without jurisdiction of the subject matter of the litigation as to which it is concerned, still we are satisfied that the court below was clearly right in holding, as it did, that the issues presented between the original parties were such that the circuit court alone could give proper and adequate relief. Personal property of considerable value taken possession of by the executor was transferred by him to the purchasers [102] Utt and Hemphill and who then took possession. Plaintiff’s written consent to such sale by the executor in the contract of April, 1923, supra, both of the real and personal property, was upon the express condition that his claims of priority and as a preferred creditor shall be determined by the “Grant county Wisconsin court” both as to the amount and as to the priority thereof. This contract, therefore, did not expressly or by implication waive the plaintiff’s claims to priority. The issues thereafter between the plaintiff and an executor of the estate who had divested himself of possession of the property concerning which the claim for priority was made, and third persons to whom such property was transferred, presented a situation in which the circuit court and not the county court was the proper tribunal. Clearly in litigation between Thorne, claiming a prior lien on both the personal and real estate, and Utt and Hemphill in possession thereof, the county court would have no jurisdiction. The making of the executor of the estate a party to such action could in no wise take away jurisdiction from the circuit or confer it upon the county court. Had the county court determined; upon proceedings before it, that the executor should take back the property and rights he had transferred to Utt and Hemphill and they had refused so to do, it would be for the circuit and not the county court to then determine the respective rights and liabilities arising from such a transaction. It is clear, therefore, that the objection by the intervening appellant bank, even could it be entertained, should not be sustained. The following, among many other authorities that might be cited, support this conclusion: Jones v. Citizens’ S. & T. Co. 168 Wis. 646, 656, 171 N. W. 648; Merrill v. Comstock, 154 Wis. 434, 442, 143 N. W. 313; Gianella v. Bigelow, 96 Wis. 185, 200, 71 N. W. 111; Estate of Kallenbach, 184 Wis. 171, 175, 199 N. W. 152. Appellant contends in effect that the statute in force at the time of the 1920 contract between plaintiff and Webster as [103] to conditional sales did not apply to a stock of goods, wares, and merchandise such as was involved in this transaction; in any event did not permit or authorize sales by retail from such stock by the vendee in possession; and finally, that plaintiff was estopped from asserting any lien as against the bank by his failure to file until December, 1922. It is clear, however, that the law as it stood under sec. 1684m — 1 et seq., Stats. 1919 (now found substantially the same in sec. 122.01 et seq.), permitted (sec. 1684m — 1) possession being delivered at the time of the sale to the buyer, title to remain in the vendor until payment of part or all of the purchase price, or the performance of any other condition or happening of any contingency. Such conditional sales were declared void only as to any purchaser from the creditor or buyer, who, without notice, purchases the goods or acquires by attachment or levy a lien upon them before the proper filing of the contract or copy thereof. Sec. 1684m — S (sec. 122.0S). The right to resell such goods where the seller expressly (as here) or impliedly consents that the buyer may so resell, except that the reservation of title shall be void against purchasers for value in the ordinary course of business, was and is expressly recognized. Sec. 1684m — 9 (sec. 122.09). The court having found that there was no fraud on the part of the plaintiff or Webster in the failure to file the sales contract of March, 1920, until December, 1922, and having further found that neither the appellant here nor any of the other creditors of Webster acquired by attachment or levy a lien upon the goods at any time prior to Webster’s death, and there being no challenge as to such finding and no ground under the record for such challenge, if any such had been made, Thorne’s lien upon so much of the goods sold by him to Webster in March, 1920, as remained in the possession of Webster at the time of his death and came into the hands of the defendant executor was good and valid, as was so [104] found by the trial court. There are no errors, therefore, of which the appellant bank can complain in the judgment as entered by the trial court. Plaintiff by motion seeks to review the proceedings on three grounds: (1) That the court erroneously permitted the bank, appellant here, to intervene, thereby compelling the plaintiff to amend his complaint and contest other issues. In view of the disposition made of this case we deem it unnecessary to say more on this point than that the bank, being a creditor and interested in any questions affecting the assets of the estate, was properly allowed to intervene and become a party. Sec. 260.19. (2) That the trial court refused to allow the plaintiff costs as against the appellant bank in the court below. This might well have been done; but we see no grounds upon which we can interfere with the disposition by the trial court of a matter of costs in such an equitable action. (3) And lastly, to the refusal on plaintiff’s request to render judgment requiring the appellant bank to repay to the executor $661.50 withdrawn by it from the deposits kept by Webster in his lifetime and of the estate’s funds thereafter by the executor and applied in payment of the interest as it fell due on the obligations that the bank had. This is a question that will properly come up before the ■county court in passing upon the claim of the bank or in passing upon the executor’s final account, and was properly denied consideration below by the trial court. By the Court. — Judgment affirmed.