Bond v. Neuschwander

86 Wis. 391 | Wis. | 1893

Winslow, J.

The court was entirely right in opening the default and allowing the garnishee defendant to answer. Such a course was the only proper one when it appeared, as it did without dispute, that the garnishee was insane when the summons was served upon her. R. S. sec. 2832;¹ Gerster v. Hilbert, 38 Wis. 609. The verified petition contained an affidavit of merits as well as a sworn denial of all liability, sabstantially sufficient as an answer under.sec. 2759, R. S., so all the technical requirements necessary to authorize the court to open the default were complied with.

It. is true that the court went further than would be justified in an ordinary case of opening a judgment and allowing a defense to be made. Ordinarily, the default should be set aside and the judgment should be allowed to stand as security to the adverse party, pending the determination of the issue; but in this case, it appearing that the property claimed to be in the hands of the garnishee is real estate, and she being insane, so that a transfer thereof could only be made by authority of court, it does not appear that the plaintiff is prejudiced by the absolute vacating of the judgment.

No other points require notice.

By the Court.— Orders affirmed.

1 R. S. sec. 3832, provides that the court may relieve a party from a judgment against him through his mistake, surprise, or excusable neglect.— Rep.