60 Wis. 296 | Wis. | 1884
After a careful consideration of the facts, and the arguments of the learned counsel for the respective parties, we have concluded that the learned circuit judge erred in refusing to instruct the jury as requested by the appellant,
1. It seems to us very plain that where the law authorizes the service of a garnishee summons upon an officer of a corporation who has not in his actual possession the property sought to be reached by such process, but such property is in the possession of some other officer or employee of the company, and such other officer or employee delivers such property to a person authorized to receive the same, before he can, with reasonable diligence on the part of the officer served, be notified to retain the possession thereof, such service is not sufficient to charge the corporation as garnishee. Nor do we think the officer served is under obligation to use extraordinary diligence in notifying the officer or other employee in charge of the property of the service of the process. He is bound to use reasonable diligence in respect to the matter, and if by the use of reasonable diligence notice cannot be given to the person in the actual possession of the property before it has lawfully passed from the possession of the corporation, the corporation cannot be held liable as garnishee in respect to such property.
In this case the garnishee summons was served at an unusual time, five o’clock in the morning, on the 2d of March, at a time when the officer was probably in his bed, upon an officer who, as the evidence shows, had no knowledge of the fact that the company had any property of the defendant in its possession, and whose business did not require him to have any knowledge upon that subject; and, so far as the evidence in this case shows, he had at hand no ready means of ascertaining the fact that it had any property of defendant in its possession; and within two and one half hours of the service of the process upon such officer of the company the property sought to be reached by the proceeding was without notice delivered to the person entitled to receive the same under the contract by which the company held pos
We think the rule applicable to the notice which must be given by the vendor to stop goods in transitu, should apply to a case of this kind. The rule applicable to such cases is well stated by PaRke, B., in Whitehead v. Anderson, 9 Mees. & W., 534 He says: “If notice be given to the principal whose servant has the actual possession of the goods, it must be given at such a time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servant to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery.” It seems to us that it would be the height of injustice to hold the railroad company liable as garnishee for goods which their servants and employees have delivered to the consignees entitled to receive them, having no notice at the time of making such delivery that any garnishee process had been served, and before a reasonable time had elapsed, after the service upon a distant officer of the corporation, within which notice could have been given to stop such delivery. To hold the company liable in such case would do violence to the statute which directs that “ the court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests,” etc. R. S., sec. 276G. The rule above stated was held applicable
'Ql. Notwithstanding the general language of our statute upon the subject of garnishment, that “ any creditor shall be entitled to proceed by garnishment, in the circuit court of the proper county, against any person (except a municipal corporation) who shall be indebted to, or have any property whatever, real or personal, in his possession or under his control, belonging to such creditor’s debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter” (R. S. sec. 2752),— we feel constrained to hold that the personal property or real estate in his possession or under his control must "be limited to personal property or real estate within this state, and that in the absence of any fraud or connivance on the part of the garnishee to aid the debtor in defrauding his creditors, personal property or real estate which is lawfully in the possession or under the control of the garnishee outside of this state is not the subject of garnishment under our statute. That personal chattels outside of the state, which, if within the state could be seized by attachment or execution, were not intended to be covered by the statute, is, we think, evident.
The attachment of the debtor’s property before judgment has always been considered a harsh remedy in this state, , but that writ can only reach the property of the debtor,'/ within the state. R. S., sec. 2138. The garnishee process is in the nature of an attachment, and was first used to attach the credits of the debtor and apply them to the payment of his debts, but it has been extended in this state so
The statutes of this state, considered together and as one system, clearly indicate that the personal property Avhich may be arrested in the hands of a garnishée must be within the state, so that it may be seized and sold to satisfy any judgment obtained against the principal debtor. Sec. 2762, E. S., relating to the proceedings in the circuit court, says: “If the answer disclose any money, credits, or other property, real or personal, in the possession or under the control of the garnishee, the officer having a writ of attachment or an execution, if any, may levy upon the interest of the defendant in the same; otherwise the garnishee shall hold the same until the order of the court thereon.” The last clause of the section evidently relates to the cases where the garnishee is summoned in an action not commenced by attach-' ment, and in such cases he must hold the property to await the judgment of the court in the principal action. The act giving jurisdiction of the proceedings to justices of the peace, provides as follows: “ The justice shall enter an order in his docket, requiring the garnishee, within ten days, to
These provisions clearly indicate that the personal property to be reached in the hands of a garnishee is such as would be subject to seizure by the writ of attachment or execution, if they were in the .possession of the principal debtor. It is unnecessary to intimate the difficulties and hardships which would result from the enforcement of a rule against garnishees compelling them to deliver up to the processes of the courts of this state any property they may have under their control, belonging to the principal debtor, situated in another state. The difficulty in the case at bar might not be great, because the property, although in fact out of the state when the garnishee summons was served, was not as distant from the place where the court was held, which issued it, as it might have been within the state. But the rule, if established, must be 'general, so that if property just beyond the line of the state may be reached, then property in Maine, Louisiana, or California, or in any foreign countiy, may also be reached and held. The difficulties and injustice of enforcing such a rule are apparent. The only case cited by the learned counsel for the respondent in which any court has held that personal property out of the state, in which the garnishee process was issued, could be reached and held by it, is Childs v. Digby, 24 Pa. St., 23. That case was disapproved as bad law by the same court in Penn. R. R. Co. v. Pennock, 51 Pa. St., 244. The position taken by us upon this question is approved by the Pennsylvania court in the case last cited, and also in the following cases: Western R. R. v. Thornton, 60 Ga., 300; Sutherland v. Second Nat. bank, 78 Ky., 250; Wheat v. P. C. & Ft. D.
It is urged by the learned counsel for the respondent that the garnishee should be held for property in his control out of the state, because the court could enforce its order against the person of the garnishee, over whom it has jurisdiction, in like manner as a court of equity sometimes enforces a contract between the parties to the action to convey lands situated in another state. Our answer to that argument is, as stated above, that it is clear that the legislature did not intend to confer these high equity powers upon the courts having jurisdiction of the garnishee process. It is unnecessary, therefore, to discuss the question of the power of the legislature to confer upon the courts of this state the authority to appropriate the personal property or real estate of a debtor, situate in another state or foreign country, to the payment of his debts in this state. [ ■> « ‘ > >
3. Another question of very great importance to all common carriers, and especially to all railroad companies within this state, was very fully discussed by the learned counsel for the respective parties orally and in their briefs; and, although not absolutely necessary to a determination of this appeal, we deem it highly proper to consider it in this case. The exact question is this: Can a common carrier be held liable, upon a garnishee summons, for personal chattels in his possession in actual transit at the time the summons is served?
We think that public policy, and the proper discharge of the duties imposed upon common carriers of personal chattels placed in their possession for carriage, requires that this question should be answered in the negative; and we think so, notwithstanding the verjr broad language of the statute above quoted. That railroad corporations, as well
The supreme court of Massachusetts, in the case of Staniels v. Raymond, 4 Cush., 314, held that a person might have the possession or control of the property of another for the time being, and yet not be subject to the trustee process of that state. In that case the defendant was sought to be charged as trustee as to a cow he had in his possession under the followingcircumstances: He had been negotiating with the owner for her purchase, and had taken her into his possession for trial; but before the trustee process was served he had notified the owner he would not take her, and at the request of the owner she remained in his possession at the time the process was served. In deciding that he was not liable to the process, the court, after stating that there was some doubt whether the possession of the defendant was within the literal construction of the statute, say: “ But, if it were so, such a construction would be unreasonable and inadmissible, for thereby an innkeeper would be chargeable with the property of a traveler which he might have in his possession for the shortest time; and the hirer of a horse for a ride might be charged as trustee.” And again, after showing that courts are bound to give such a construction to a statute as would be reasonable, they say: “We think it never could have been the intention of the legislature that the mere possession of property by a party having no claim to hold it against the owner, should render him liable as trustee, and thereby subject him to trouble and expense in answering to a claim in which he has no interest. Such a construction of the statute would be prejudicial in very many cases, and cannot be admitted.” The reasoning of the court in this case applies with great force to the common
There are but few decisions of the courts upon this subject. We have been referred, by the learned counsel for the respondent to the case of Adams v. Scott, 104 Mass., 164, as sustaining the right to hold, by garnishee process, goods in the hands of a common carrier while in transitu. It must be admitted that the court so held in that case. It was a very plain case. There was no dispute about the ownership of the property, and the property at the time of the service seems to have been not in actual transit, but in the hands of an agent of the company in the city of Boston. Still it is quite plain that the court held that the fact that the property was in the hands of a common carrier in transit, was no objection to the proceedings. This is the only
Whether goods in a depot of a railway company in this state, either before transit or after, and awaiting delivery
Por. the reasons stated, the judgment of the circuit court must be reversed.
1'_By the Court.— The judgment of the circuit court is reversed, and the cause remanded with instructions to that court to enter a judgment upon the special verdict in favor of the garnishee defendant. \