108 Wis. 181 | Wis. | 1900
1. The greater part of the trial in the circuit court and of the briefs in this court were devoted to matters quite nonessential to the conclusion reached, namely, to the state of a long account between McCall and McKinnon at the time of the service of summons in garnishment upon Morris and Whitcomb as receivers. All this is immaterial, for it appears that independently thereof no garnishable liability or property existed in the hands of the garnishees at the time of the service of the summons upon them. The garnishing plaintiffs could, of course, stand in no better position as _ against the garnishees than could McKinnon himself. They cannot recover upon their garnishment what he could not by direct action, except as his right of action might be merely delayed to a future time. Healey v. Butler, 66 Wis. 9, 16; Edwards v. Roepke, 74 Wis. 571; Dowling v. Lancashire Ins. Co. 89 Wis. 96.
The only thing upon which any liability of the garnishees is attempted to be predicated is the possession of 801 pieces of piling, for which they had made contract of purchase with McKinnon and had agreed to pay $525.80. It is established without controversy that these pieces of piling had been cut from the land of one Smith under a written contract of authorization which expressly reserved title to himself until the full purchase price was paid. Some $1,700 of purchase price remained unpaid. As early as May 4th, twelve days before the service of the garnishee summons, Morris and Whitcomb had been notified of Smith’s claim. This was the situation on May 16th when the summons in garnishment was served.
2. An interesting question is raised as to the possibility of
By the Court. — Judgment affirmed.