![handle is hein.journals/wilegn5 and id is 1 raw text is:
WISCONSIN
VOL. V.
EGALI
THURSDAY MORNING, SEPTEMBER 28, 1882.
TEIRMS:
OUQ copy, per almnnm, In atvaaice,
Single Copies, - -
- $2.00.
tl0 Ct.
CLUBS.
A special rate of $2.50 per year will be made
or clubs of not less tha six subscribers.
EXTRA COPIES.
When anLy one of our subscribers is interested
luan opinion published, we send him a copy ol
THsE DAILY LEGAL NEws, containiig tile opin-
ion, in advance of the WEEKLY, free.
REMITTANCES
Shold be made by money or express order.
bank draft or registered letter, at the expense of the
remalter. Checks on subscriber's bank will not be
acepted. If subscribers do not remit in a rea-
*onable time after bills are sent, we will draw on
them for the ,.mOiint due, with exchange.
All eonmunicatiosstiould be addresed La
WISCONSIN LEGAL NEWS.
430 & 432 Broadway, MilauKee.
Entered at the Postoftice at Milwaukee. Wis.,
as second class matter
Gowan et al vs. Hanson.
Attachment-Gsrnish men t-Abatenent.
Action commenced by attachment on a debt
before maturity and garni-hee proceedings iu-
stituted. The County Court ordered the attach-
nent and all proceedigs thereon to be set aside
and required defeudant to answer. Detendant
answered setting up in abatemeut that the iii-
debtedness was not due wlen suit was com-
menced, and asked dismissal of the action. On
the trial the Coirt directed tie jury to return a
verdict in abatement of the action, because
commenced before the debt was due. Plaintiff
appeats.
Held, That where the debt is not due the rem-
edy by ch. 233, L. 1880, cali only ta sustained
where the attachment is sustained. That if
there ts a traverse of the attachment, that issue is
triable by the Court before the main issue is
tried. That the judgment rendered, which was
In abatement, will not operate to bar another
action when the debt Is due.
Appeal froah County Court. Mil-
waukee County.
Frank M. Hoyt, Attorney for All
pellants Victor D. Gowan et al.
Jenkins, Elliott & Winkler, Attor-
neys for Resp. Sievert C. Hanson.
Cole, C. J. This action was com-
menced by attachment on a debt be
fore naturity, and garnishee proceed-
ings instituted. The ground for the
attachinent, as stated in the affidavit
made by one of the plaintiffs was, that
the affiant had good reason to believe,
anlfl verily (lid believe that the defend-
ant had assigned, conveyed, disposed
of, or concealed, or was about to as-
sign, convey, dispose of, or conceal
his property with intent to defraud his
creditors. The amount of debts to
become due was stated in the affidavit
to be $540-t8. An undertaking in
only the stint of $750, was executed.
The defendant's counsel obtained a
rule to show cause why the writ of at-
tachmnent in the action should not be
dismissed; and why the action should
not be dismissed, for the reason that it
appeared by the affidavit annexed to
the writ, that the demand was not due
when the suit was commenced; and
also because the undertaking given
was insufficient. On the hearing of
the rule the county court ordered the
attachment and all proceedings there-
on to be set aside anti vacated, but
denied so nuch of tile notion as
asked foi the dismissal of the action,
without prejudice, and required the
defenlant to answer. [he delendant
did answer, setting uIp in abateient
that the indebtedness was not doe
when the suit was commenced, and
asked that the action be dismissed.
On the trial of the suit the court
directed the jury to return a verdict
in abatement of the action because it
was continence(] before the debt was
litie; and the jury so found. Th e-
Upon judgument was entered, from
which this appeal was taken.
The principal question discusscd on
tile appeal relates to the constrnction
of chat). 233, L. 188o. That chapter
provides that an action inay be nain-
tained and a writ of attachment
issued on a debt not due, in the cases
specified, aud that the saine proceed-
ings in the action shall be had aid the
san e affidavit required as in actions
upon matured demands, cxcept that
the affidavit shall state that the debt
is to become due; provided, that an
tindertaking on the part of the plain-
tiff is given, with sufficient surety, con-
ditioned, etc., in thrte times the amount
demanded. In case ait attachment be
issued befoie the maturity of the
debt, and a traverse to the attachment
is sustained, the court is required to
dismiss the action.
To our minds it is perfectly clear
that this statute only atithomizes the
commencement of an action on a
debt not due for tile purposes of an
attachment on condition that the
requisite affidavit is made and the
proper undertaking executed and de-
livered. The giving of an tundertaking
for three times the amount demanded
is as essential to the right to maintain
the action as the making of the affida-
vit. Both things are absolutely nec
essary andI requisite where the debt is
not due, and the omission of either is
fatal to the action. This is the plain
meaning of the statute, and any other
construction would do violence to its
language. It is suggested by plaintift's
counsel that there is room for con-
struction ; that the intent of the statute
is not clear or free from dotbt. But
we differ loto codo with counsel in
that view., There is nothing obscure
or doubtful in the law. The language
in which the legislature have spoken
is plain and unambiguous; therefore
interpretation is not allowable. Ogden
vs. Glidden, 9 Wis., 47. Nor can we
extend the language bevond its obvi-
Otis I11 -aling to) advmttce smine still
posed policy of th1 1t-gil Itutr, in
giving this reanedy ot a debt not due.
IThat would b sti l*% to leglsiIte.
Wilerc there is a trtvcrse of tle at-
tachment ite issue so raised should be
tried by the courl, before the trial of
the main issue, as in the ordinary
case ot a tlaverse Of at.iachulent utder
section 2745 R. S. if the traverse is
sustained -the court shall dismiss the
action. 'he statute so tdeclares.
It was insis ed on the part of tile
plaittiffs that the action aight still be
maintained after the attachment was
dissolved, because garnishee proceed-
iags had been instituted. We think
otherwise. In the language ofone of
laintiffs counsel, the stilt camnot be
maintained where the debt is not (life
unless there is also a subsisticg con-
currert attachment accompanying the
same.
But it is further arguel that in thuis
view the court should have dismissed
the suit on defendant's notion. Un-
doubtedly. But it is said as the court
retained the complaint for answer that
error cannot avail the defendant now.
It would be a strange travesty on jud-
Jci il proceedings to r( verse this jtadg-
amnlit because the court should have
renlered the same judgment at some
earlier stage of the caue.
It was further objected that the
judgtnent is defective in form and
wouldt operate in bar of another ac-
tion. 'This point is not well taken.
The ileadings and verdict would show
that it was a judgment in abatement if
there was any doubt as to its nature
and effect as it now stands.
Sherman et al. vs. Rugee, Sheriff, etc.
Replevin-toppage in transitu.
P1.4intiff4 In Manitowoc agreed to sell and did
shipby railway lo Seheiderer & Reid at Milwau-
kee, a quatitv of leather at the same time mal-
iag to them a letter of advice aud bill o goods.
Ihe purchasers received notice from the railway
company ol the arrival o tiae leather, but had
not removed nor paid for it. Alter reeeiptofsuch
notice and OU tte same day, tiae defenlant
sheriff seized on execaation tihe whole stock ot
purchasers, itludatwg the letter of advice ad
bill ot goods; and alter notice to the railway
corn pany claiming the goods, he toek possession
of the sa, e ano stored them with the other
goods seized on execution.
Plaintiffs demandel tiae leather in controversy
of the sheriff, were refused, and llrottght this ac-
tion. The judge directed the jury to find for
plaintiff, autl defendant appeals from the judg-
ment eateredi.
The insdvency of the purchasers when the de-
mand was made upou the sieaiff, is clearly
proved Held, that the leather was still in traasit
at tile time of such demand, notwithstading its
seizure by the sheriff; and that tile undisputed
evidence establishes plaintill's right of action.
Appeal from County Court,Milwan-
kee County.
Jenkins. Elliott & Winkler, for
Resp., Lewis Sherman and Eugene S.
Sherman.
S.
No. 1.
J ames Hickcox, Flanders & Kiti tlu,
or App., John Rugee, Sheriff etc.
Replevin for a quantity of it-ather.
AIty i9, i88r, tine plaintiffs, who are
leather dealers in -Nianttowoc, agteed
to sell to Scheiderer & Rcid, who'
were carrying oil a tannery in th, city
of itilwauikee. twenty-six rolls-con-
latling 26o sides of rough leather, for
which the purchasers were, at their
option, to pay cash or give their note
at 30 days. In case they paid cash a
discount was t I)e inate. It does not
appear that the modle of shipment or
tile price of the leather was agreed
upon. On the following day plaintiffs
shipped the leather from Manitowoc
consigned to the purchasers at Mi!-
waukee via, The Milwaukee, Lake
Shore and Western Ry. and at the
same title mailed a letter of advice to
the purchasels containing a bill of the
leather at 27 cents per pound, and
asKing them to account promptly by
cash or note. On May 21st the ptr-
chasers received notice from the rail-
way office of the arrival of the con-
signment. They (lid not obtain the
leather fromi tile railway company or
rent to the plaintiffs any cash or note
on account of it, or signify their ac-
ceptance of it at the price charged.
After such notice was so received
by them and on the same (lay the de-
fendant sheriff seized the whole stock
of Scheiderer & Reid on execution
dutly issued upon a judgment against.
them for over $9oo0. The judgment.
was entered upon that day on a note
and warrant of attorney, dated May 16,,
x88r, for $9,724. 19, executed by Schei-.
derer & Reid to the fatheriofScheider-
er. The note was made payable one
day after date.
When the sheriff seized the stock
he found the notice of the arrival of
the consigniment in the office of the
execution debtors, and on being shown
the bill and letter of advice before
mentioned, he retained them. The
sheriff thereupon notified the railway
company that heclaimed tle leather,
and two or three (lays later he took
possession of it and placed it with the
other goods seized by hin on the exe-
cution. All of the goods were left in
the tannery of Scheiderer & Reed in
charge and possession of the sheriff
and his deputies.
May 23 the shemiff received other
processes against the property of the
same debt ors and levied such processes
upon the same goods and stock in.
cluding the leather, subject to the first
execution.](ViewImageLocal?handle=hein.journals/wilegn5&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most