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Rossiter vs. The Ætna Life Ins. Co. of Hartford.

order denying such a stay, therefore, is not appealable under the provision of ch. 212, Laws of 1895, allowing an appeal from an order which "grants, refuses, continues, or dissolves an injunction."

APPEAL from an order of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Appeal dismissed.

This was an action to recover the amount of a policy of life insurance, in which the plaintiff had judgment for the amount claimed, which was reversed by this court, with $227.75 costs, October 22, 1895, and the case was remanded for a new trial. 91 Wis. 121-130. The plaintiff paid the costs of the clerk of this court, $14.75, and, without paying the residue, procured the case to be remitted to the trial court, September 9, 1896, and noticed the cause for trial, and it was placed on the trial calendar accordingly. The defendant, upon affidavit of these facts, and that the remainder of the costs had not been paid as prescribed by S. & B. Ann. Stats. sec. 3072a, moved the trial court to strike the cause from the calendar of causes for trial, on account of such nonpayment of costs, and that all proceedings on the part of the plaintiff be stayed until said costs were paid. The court entered an order denying said motion, from which the defendant appealed.

For the appellant there was a brief by Geo. W. & H. S. Bird, and oral argument by Geo. W. Bird.

For the respondent the cause was submitted on the brief of H. W. Chynoweth.

PINNEY, J. In order to sustain its appeal, the appellant is obliged to contend that the order in question is appealable under subd. 3, sec. 3069, R. S., as amended by ch. 212, Laws of 1895, which provides for an appeal“when an order grants, refuses, continues, or dissolves an injunction.” The argument is, in brief, that as an injunction is defined as a judicial process, whereby a party is required to do a particular

Rossiter vs. The Ætna Life Ins. Co. of Hartford.

thing, or to refrain from doing a particular thing, according to the exigency of the writ” (2 Story, Eq. Jur. $ 861), and as by statute the writ of injunction is abolished and now “is a command to refrain from a particular act” (R. S. sec. 2773), therefore a stay of proceedings, which is defined to be the act " of stopping or arresting a judicial proceeding by order of the court or judge” (Burrill, Law Dict.), is, in substance, an injunction, and the conclusion is thus reached that an order refusing a stay of proceedings in an action is appealable as an order refusing an injunction. We have not been referred to any case or work on practice that sanctions such a loose and apparently unwarranted construction of the statute regulating appeals.

An injunction by order, which is a substitute for the judicial writ, operates upon the conduct of the parties and their attorneys, in respect to matters outside of those occurring in the ordinary progress of the action. A stay of proceedings operates in relation to something within the usual course of judicial proceedings, and which the court, by its authority over the parties and their attorneys, can regulate and control without resort to the extraordinary writ of injunction. The fact that the injunction is now by order, instead of writ, does not extend its scope or operation. The language of the statute allowing an appeal, when an order “grants, refuses, modifies, or dissolves an injunction," must be aptly restrained to the particular subject matter, and confined to cases of orders which in fact and in effect are within the proper scope of the writ of injunction, as formerly used and regarded as a judicial process. The change in form was not designed to extend or enlarge the scope of the statute in respect to appeals, so as to bring within the special language quoted common orders granting or refusing a stay of proceedings in the ordinary course of the progress of the cause. The use of the language of the statute regulating appeals as to such orders can have only the

The Senour Mfg. Co. vs. Clarke.

same general significance the same language had before the order was substituted for the writ. The provision in respect to appeals in such cases deals only with matters which were formerly within the use and scope of injunction by judicial writ. The order, in the present instance, is one refusing an ordinary stay of proceedings in the common course of the action, and is not appealable.

By the Court.— The appeal is dismissed.

96 469 196 473

96 469 14103 428

THE SENOUR MANUFACTURING COMPANY, Respondent, vs.

CLARKE, Assignee, Appellant.

96 469 f 109 105

May 22 - June 11, 1897.

96 115

469 2589

Attachment: Corporations: Intent to defraud creditors: Apparent power

of officers.

1. In attachment proceedings against a corporation, the evidence –

showing, among other things, that substantially all the stock was owned by the president, who practically exercised the whole power of the corporation; that he kept no systematic books of ac. count and possessed no accurate knowledge of its financial coudition; that he conducted his private business and that of the corporation together; that he applied funds of the corporation to his private use when he knew or ought to have known it to be insolvent; that he incurred a large amount of indebtedness in the name of the corporation, and treated its assets as individual property — is held to sustain a finding that the corporation had assigned, conveyed, or disposed of its property, or was about to do

so, with intent to defraud creditors. 2. Where the president of a corporation is apparently clothed with

full power to conduct its business and control its affairs, the public may rely upon such apparent anthority, and the corporation will be bound to the same extent as though his acts were specially authorized by a duly-recorded vote of the board of directors, especially where such officer is the owner of substantially all the stock and the only person pecuniarily interested in the corporation,

The Senour Mfg. Co. vs. Clarke.

APPEAL from a judgment of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed.

Plaintiff sued out a writ of attachment against the property of the defendant, The Sheasby & Smith Wall Paper & Paint Co., upon the alleged grounds - First, that defendant had or was about to assign, convey, dispose of, or concealits property with intent to defraud its creditors; and, second, that it fraudulently contracted the debt and incurred the obligation in respect to which the action was brought. Defendant's property was seized pursuant to the commands of the writ, and thereafter it made an assignment for the benefit of creditors. Subsequent to such assignment the assignee, pursuant to sec. 1693a, S. & B. Ann. Stats., appeared, in the name of the assignor, and traversed the affidavit upon which the writ of attachment was issued. On the trial of the issues thus formed the circuit court sustained the attachment on the first ground alleged in the affidarit, to wit, that defendant had assigned, conveyed, and disposed of, and was about to assign, convey, and dispose of, its property with intent to defraud its creditors. Judgment was thereafter rendered in plaintiff's favor, and the assignee appealed from that portion thereof sustaining the attachment.

For the appellant there was a brief by Erdall & Swansen, and oral argument by John L. Erdall and Sam. T. Swansen.

For the respondent there was a brief by Lewis, Briggs & Dudgeon, and oral argument by H. M. Lewis and M. S. Dudgeon.

MARSHALL, J. No question of law is presented on this appeal worthy of any extended discussion. The finding of fact that the allegation of the affidavit for the writ of attachment that the defendant had assigned, conveyed, and disposed of, and was about to assign, convey, and dispose of, its property with intent to defraud its creditors, is challenged

The Senour Mfg. Co. vs. Clarke.

as not supported by the evidence, which raises the main question for consideration. Such question must be considered and determined in the light of the familiar rule that findings of fact made by the trial court cannot be disturbed unless contrary to the clear preponderance of the evidence. Earlywine v. Lindley, 66 Wis. 494; Bruce v. Miller, 72 Wis. 404; Catura v. Kleiner, 95 Wis. 378. It is believed that failure on the part of attorneys to bear in mind and appreciate the force of this rule, which has become firmly fixed in our jurisprudence, results in many useless appeals, and much unnecessary expense to litigants. The trial judge has an opportunity of seeing and hearing the witnesses, observing their manner while testifying, and the benefit of many aids of a persuasive character calculated to materially assist in drawing correct inferences in regard to the facts, that cannot be preserved for the benefit of the appellate court; hence the justice of the rule that such inferences will not be displaced by others drawn by such appellate court unless the former are against the clear preponderance of the evidence is apparent, and why it should be firmly adhered to is also manifest.

The evidence here is to the effect that for a considerable length of time before the suing out of the writ of attachment, and during the time the indebtedness to plaintiff accrued, the Sheasby & Smith Wall Paper & Paint Company was a corporation; that substantially all the stock was owned by F. C. Sheasby, who was its president; that he conducted its business, managed its affairs, and practically exercised the whole power of the corporation; that no systematic books of account were kept; that Sheasby did not possess any accurate knowledge of its financial situation; that he ran his private business and the corporation business together, so that the assets of one could not be readily known from the other; that he took funds of the corporation and applied the same to his private use, while he knew or ought to have known that the corporation was insolvent;

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