In re Ellenbecker
In re Ellenbecker
Opinion of the Court
(after stating the facts as above).
“The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.” Const. Wis. art. 1,- § 17.
Counsel for petitioner cites In re Duguid (D. C.) 100 Fed. 274, as sustaining his claim. There judgments had been rendered in the state court against an adult and a minor, copartners. An execution levy was made upon the partnership goods — as stated — “on the excess after setting apart $500 to each of the defendants.” Bankruptcy proceedings having ensued, a contest arose between the execution and other creditors respecting the power of the court to avoid the judgment against the minor copartner, who concededly was not, and could not be brought, before the bankruptcy court. The referee ruled that the only amount properly claimed by the trustee was the one-half of the execution proceeds- — the interest of the adult partner. The District Court held that it had power to avoid the levy and to administer the entire partnership estate. But the exemption allotment to the minor had been made in the state court under levy on a judgment which, as against the minor individually, was good, and beyond the power of the bankruptcy court to vacate. The judge said:
"This court has no jurisdiction or interest in the judgments against .Tames Duguid (the minor), whether they are void for want of service or other irregularities, or voidable, concept in so far as they are against the partnership of Duguid & Son” 100 Fed. 278.
This is not inconsistent with, but, on the contrary, an application of, the principles first above stated.
The referee herein ruled that the petitioner, assuming that he could in any event assert a claim for exemptions, had lost the right, citing In re Friederick (D. C.) 95 Fed. 282, Lamont v. Wootton, 88 Wis. 107. 59 N. W. 456, Bong v. Parmentier, 87 Wis. 129, 58 N. W. 243, Callis v. Day, 38 Wis. 643, and Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089.
Upon either of the grounds noted, the ruling of the referee was right; and it is affirmed.
Reference
- Full Case Name
- In re ELLENBECKER
- Status
- Published