Bushnell v. Joseph Allen & Bro.

48 Wis. 460 | Wis. | 1880

Ltost, J.,

It is obvious from the foregoing statement of the case, that if the judgment rendered against the defendants in the garnishment proceedings is valid, it is a perfect protection to the defendants, and there can'be no recovery in this action. Otherwise, the plaintiffs may recover. Ve are to determine, therefore, whether any of the objections urged against the validity of that judgment are well taken. For the purposes of the case, it is assumed that Justice Fisher made no entry in his docket of the garnishment proceedings before February 23d — the date of the judgment.

1. Is the failure of the justice to enter those proceedings in his docket, and particularly to enter the adjournment from the loth to the 23d of February, fatal to the judgment against the garnishees?

■ Such omission in the principal action would doubtless be fatal to a judgment therein. But we do not think this strict rule is applicable to a garnishment proceeding, which is ancil-Iary to the principal action and dependent upon it. This seems apparent from the provision of the statute which allows a garnishee who has failed to appear at the proper time, to appear and answer at any time before final judgment against him, on payment of costs. R. S. 1858, ch. 120, sec. 120. If Allen c& Bro. did not appear before Justice Fisher on the return day of the garnishee summons, this statute gave them the right to appear and answer at any time before final judgment against them, on complying with the prescribed terms: and that right does not seem to be affected by the failure of the justice to make proper entries in his docket. The better opinion seems to be, that, if the garnishee defendant fails to appear on the return day of the summons, the proceeding stands open, and the justice may afterwards compel his attendance, under section 119, ch. 120; or, after judgment against the defendant in the attachment suit, may render judgment against the defaulting garnishee for the amount thereof, under section 130; or, before such judgment is rendered, the garnishee may appear and answer under section 120.

2. The return of the officer, of service of the garnishee summons, is defective in that in does not show upon which of the defendants he served it. But it was proved on the trial that the summons was duly served on one of the Allen Brothers, and .that the parties to the principal action were present at the examination of the garnishees on the 23d of.February. Furthermore, the return was indorsed upon the garnishee summons, and not upon the original summons, as required by statute.

It is claimed that it was the duty of the garnishees to make objection to the proceedings because of these irregularities or defects in the proceedings. Had such objection been made, doubtless it would have been unavailing; for the justice would have allowed the officer to make a correct return by indorsing on the original summons a certificate of due service of the garnishee summons on one of the firm of Allen c& Bro.

It was said in Johann v. Rufener, Garnishee, 32 Wis., 195, that it is the duty of the garnishee.to exhaust all legal means to avoid a judgment against him; and'in Pierce v. Railway Co., 36 Wis., 283, where the fund sought to be reached by the garnishment proceedings was exempt from execution, Mr. Justice Cole says that the garnishee should have claimed the benefit of the exemption for the original debtor, “ or. at least have given him notice of the pendency of these proceedings, and afforded him an opportunity to defend.” These observations were made with reference to the former law, which did not require the garnishee summons to'be served on the defendant in the main action.

"Whether the garnishee summons was or was not served upon "Williams, the original defendant, we think all that is required by the rule above stated is, that the garnishee shall interpose any defense to the merits which he knows the principal defendant might interpose were he present defending against the garnishment proceedings. "We do not think he is required to make technical objections to defects in the record, which, if made, can readily be cured by amendment. We have seen that the defects in the officer’s return might have been so cured.

The garnishee summons having been duly served on one of the firm of Allen c& Bro., and that firm having appeared by one of its members on the 23d of February, and answered, and "Williams, under whom the plaintiffs claim, also having appeared at the same time, our opinion is that the court had jurisdiction to render judgment against the garnishees, and that the failure of the garnishees to object to the defects in the return was no breach of their duty to "Williams or his assignees, the present plaintiffs.

3. It is further maintained by the plaintiffs that the garnishee judgment is fatally defective because the record in that proceeding fails to show that a judgment had been previously rendered against Williams. The point is not well taken, and the authority cited (Drake on Attachments, § 658 a) does not sustain it in cases like this. The true rule is, that, in a garnishment proceeding under an attachment or summons, the record in such proceeding and in the principal suit are to be read together; and it is sufficient if the whole record shows that a judgment has been rendered against the principal defendant. The rule contended for is only applicable where a statute gives a garnishment proceeding upon a judgment, without execution. It is obvious that, in such a case, the record in the proceeding should show the judgment upon which it is based.

4. The defendants constituted the firm of UJ. Allen c& BroP That firm was summoned as garnishees, and appeared and answered. The misnomer of the firm in the inception of the proceedings is of no importance. Besides, such misnomer was properly cured by amendment.

It follows that the judgment against these defendants in the garnishment proceedings is a complete defense to the plaintiffs’ claim in this action, and that the circuit court ]3roperly directed a verdict for the defendants.

By the Oourt. — Judgment affirmed.