Chase v. Doxtater

147 Wis. 581 | Wis. | 1912

Tbe following opinion was filed October 24, 1911:

WiNsnow, O. J.

Tbe conclusion of tbe trial judge seems unquestionably right upon facts which are practically undisputed. Although differing somewhat as to details, Doxtater and Wheelock agree that Doxtater bad no concern with tbe sale of tbe land to Wilcox, but that it was understood that Doxtater was to deliver tbe deed to. Wheelock and that Wheel-ock was to be responsible to him for tbe purchase price. Dox-tater is tbe most certain of tbis, and says in so many words that Wheelock was to pay the $1,250 in cash on delivery of the deed. The conduct of Wheelock in making payments out of the fund and in fact .administering the entire sum before the money had been received from Wilcox is only consistent with the idea that he (Wheelock) owed the money as soon as the deed was delivered to him.

There was absolutely no proof that the land was a homestead. It is very plain, also, that the federal statute which makes void any deed or contract touching allotted land while it is still held in trust by the government (Dawes Act, 24 U. S. Stats, at Large, 388, ch. 119, 3 Fed. Stats. Ann. 494), as well as the statutes which provide that land which has been .patented in fee simple shall not be liable for the satisfaction of any debt contracted prior to the issuance of the patent (34 U. S. Stats, at Large, 182, ch. 2348, Fed. Stats. Ann. Supp. 1909, pp. 204-201), have no application here.

The contention is made that, even conceding that Wheelock was indebted to Ed. Doxtaier, still garnishment proceedings cannot reach that debt and apply it on a judgment against Ed. Doxtater and his wife, Louise Doxtater. In other words, that garnishment will not reach a debt due to one of two judgment debtors. One or two courts have so held, construing peculiar statutes, but the consensus of authority is the other way. Rood, Garnishment, § 155.

A person holding a judgment against two may cause the execution to be levied against the property of either. Davelaar v. Blue Mound Inv. Co. 110 Wis. 470, 86 N. W. 185.

Garnishment is practically only an equitable execution brought for the purpose of reaching nonleviable assets. There seems no sound reason why the nonleviable property of one of two judgment debtors may not be applied on the judgment, as well as his leviable property. Eurthermore, our statute seems to contemplate this very thing; for, in prescribing the form of tbe garnishment affidavit, it provides that it shall be stated therein that the garnishee “is indebted to . . . the defendant, or either or any of the defendants.” Sec. 2153, Stats. (1898).

By the Court. — Judgment affirmed.

A motion for a rehearing was denied January 9, 1912.