
    Robinson Bros. Shoe Company, Appellant, vs. Knapp, Respondent.
    
      May 4
    
    
      May 24, 1892.
    
    
      Insolvency: Attachment: Priority.
    
    Under sec. 4298, R. S., an attachment levied after the defendant has filed a petition in insolvency,: but before an assignment has been made, gives the attaching creditor priority over other creditors. Mowry v. White, 21 Wis. 417, followed.
    APPEAL from the Circuit Court for Fond du Lao County.
    The facts are stated in the opinion.
    
      Maurice McKenna, for the appellant,
    cited Sexton v. Mann, 15 Wis. 162; Foster’s Case, 2 Story, 131; In re Bellows and Bede, 3 id. 428; Fisher v. Tose, 3 Rob. (La.), 457; Oliver v. Smith, 5 Mass. 183; Farmers’ Bank v. Beaston, 7 Gill & J. 421; Oolby v. Ooates, 6 Cush. 558; Dewing v. . Went/worth, 11 id. 499; Davenport v. Tilton, 10 Met. 320; Sharpless v. Welsh, 4 Dali. 279; 3 Parsons, Cont. 431; In re St. Helen’s Mills Go. 10 N. B. R. 418; In re Wayne, 4 id. 23; Allen v. Massey, 17 Wall. 351; Carr v. Hilton, 1 Curtis, 230; Linder v. Lewis, 19 N. B. R. 455; Adams v. Hyams, 19 Blatchf. 487.
    For the respondent there was a brief by Edward S. Bragg; and for other attaching creditors similarly situated, there was a brief by Colman, Sutherland ás Iliner; and the cause was argued orally by J. W. Hiner.
    
    They cited 7 Lawson, Rights & R. sec. 3564, and cases cited; Drake, Attach, secs. 22L-5, 425; Mowry v. White,' 21 Wis. 417; Fates v. Dodge, 123 Ill. 50; Crosby v. Hillyer, 24 Wend. 280; Berthelon v. Betts, 4 Hill, 577; Bailey v. Burton, 8 Wend. 339.
   OetoN, J.

The- appellant was a creditor of F. A. Brasted qn August 1,1891, in the sum of $933, and the said-Brasted, on July 23, 1891, filed bis petition, under cb. 119, R. S., as an insolvent debtor. Tbe respondent, on tbe 25tb day of July, 1891, commenced attachment proceedings against tbe said Brasted, by wbicb a portion of bis property was levied on, and by order of tbe court afterwards sold and converted into money in tbe sum of $5,000, and which is now in the custody of the court. Tbe appellant filed its petition for the stay of all proceedings in said attachment pending the insolvency proceedings, and procured an order to show cause accordingly. Tbe respondent demurred to said petition, and tbe demurrer was sustained and the petition denied by the court, and the appellant has appealed from said order.

At tbe time this order was made there had been no assignment- of tbe debtor’s property, or appointment of an assignee. Tbe petition was evidently beard by tbe court' on tbe strict legal rights of the parties. This case is ruled by Mowry v. White, 21 Wis. 417. Tbe same statute there considered is yet in force. It is claimed by tbe learned counsel of the appellant that the attachment created no lien on tbe property. It is not well to be technical on that question, but to consider the facts, as they are. Tbe property bad been sold and converted into money, and tbe money is held by tbe court to await tbe judgment in tbe attachment; and the question now is: Have tbe other creditors of the insolvent debtor, represented by tbe appellant, a right to their money superior to that of tbe respondent under bis attachment? If they have not such a right by virtue of tbe filing of the petition of tbe insolvent debtor, then they have no right to interrupt, delay, or stay the respondent’s attachment suit.

The learned. counsel of the appellant says in his brief that by the statute (sec. 4298, R. S.) the assignment in the insolvent proceedings of the debtor’s property “ vests in the ,assignee all the property of such, insolvent at the time of presenting his petition.” If that is so, it is certainly a very strong argument that the insolvency proceedings have lawful priority over the attachment in respect to the property of the debtor. But it seems not to be so. That section provides that “ the assignment shall vest in the assignee all the interest of such insolvent, at the time of executing the same, in any estate or property,” etc. This is the hinge on which the case of Mowry v. White, 21 Wis. 417, turned. Chief Justice DixoN said in his opinion, after citing this statute (which was the same as the present): “ TJntil the assignment is made, the debtor remains in full possession and enjoyment of his estate, and may dispose of the same at pleasure,” etc. I regard that case as having settled the law, until the statute is changed in this particular, that the attaching creditor- has a prior right over insolvency proceedings to the debtor’s property until the assignment is actually made. It is the interest the debtor then has in property only that is assigned. As said further in that case, “ the terms of the statute are very clear.”

I shall not follow the learned counsel on either side in considering cases decided elsewhere, when the case is so clearly governed by a former decision of this court. That .case has become a settled rule of property in all such cases. We are satisfied that the case was decided correctly, and we shall follow it in this case.

By the Court. — The order of the circuit court is affirmed.  