Becker v. Becker

112 Wis. 24 | Wis. | 1901

Marshall, J.

As we understand the record, the facts are not in controversy. The parties agreed, and the court found, in effect, that the money deposited by A. J. Becker with the bank was to remain his property till the bank received and he approved of the deed, and that it was to go to Michael Becker or his assignee contingent upon the happening of such circumstances. That is to say, putting the matter in the best light for respondent, the right of Michael Becker to demand or dispose of the money in any way was,, at the time the garnishee summons was served upon the' bank, contingent upon the reception of the deed by it, as agent for A. J. Becker, and his approval thereof. This court has many times held that, in such circumstances, there' is no liability of the debtor or possessor of the property which-can be reached by garnishee proceedings. The language of the syllabus in Edwards v. Roepke, 74 Wis. 571, very clearly states the law: “A garnishee is not liable as such for property in his possession unless the right of the principal defendant thereto is absolute at the time of the service of the garnishee process; nor for the amount of a debt, if its becoming due depends upon a contingency.” That had been declared time and again prior to such decision, and has been repeated many times since. In Bardon v. McCall, 108 Wis. 181, the court said, in effect, speaking by Mr. Justice Dod&e, that unless the circumstances are such that the garnishee-defendant was liable absolutely to the principal defendant at the time of the service on the former of the garnishee summons, so that the latter could then have maintained an action against the former to enforce such liability except as the right might be delayed by mere time,— something certain to take place,— the garnishee cannot be held liable to-respond for the benefit of the defendant’s creditor, for such creditor cannot acquire any better right under the remedy by garnishment than the principal defendant could by action against the plaintiff.

The decision of the circuit court was wrong. There does not seem to be any controversy but that, if the money held by the bank was not subject to garnishment in favor of respondent, it should go to appellant Maxam. The judgment of the circuit court must be reversed, and the cause remanded with directions to render judgment in favor of the principal and interpleaded defendants for costs, and in favor of the interpleaded defendant requiring the money in controversy to be paid to him.

By the Court. — So ordered.