179 Wis. 21 | Wis. | 1922
Lead Opinion
The trial court held in its written opinion, and the defendant now contends, that the plaintiff can only recover damages where its cause of action is based upon malicious prosecution, and second, that under the provisions of sec. 2771 of the Statutes the plaintiff cpuld have filed a bond in the civil court proceedings and obtained possession of the property, and thereby have prevented any damages from accruing.
The remedy afforded by garnishment is purely statutory,
A garnishment, though in form an action at law, is in substance an equitable proceeding to determine the ownership of property in dispute, and results in what is termed an equitable levy.
An intervener stands in the character of plaintiff before the court as to the nature of his title and the object of his demand, and is governed in his pleadings by the rules of practice which apply to plaintiffs in principal demands. 2 Ruling Case Law, 884.
Sec. 2767 of the Statutes in substance provides that, when the answer of the garnishee shall disclose that any other person than the defendant claims ownership of the property, such person may be ’ interpleaded as a defendant to the garnishee action, and he is then required to answer, setting forth his claim to the property, or to make any defense which the garnishee might have made. Upon interpleader, if the interpleaded defendant defaults, the court may render judgment concluding him from any claim with respect to the property.
It is argued by the defendant that by reason of the provisions of the statutes the interpleaded defendant, having been made a party to the garnishee action and having been permitted to litigate his claim therein, and he thus having been provided with his day in court, is in no different position than the defendant himself, and under the ruling in the case of Veitch v. Cebell, 105 Wis. 260, 81 N. W. 411, is not in a position to recover damages-for having been deprived of the possession of his property unless he can show that the proceedings in garnishment which
The relative positions of a defendant in a garnishment action such as the defendant in the Cebell Case and an interpleaded defendant are radically and fundamentally different. In the original action and proceedings in the civil court the plaintiff made no claim against the interpleaded defendant. In its principal action it sought to obtain judgment on a claim against the principal defendant, and in the garnishment action attempted to become subrogated to the rights of the defendant with respect to the title, possession, and disposition of the property in the hands of the garnishee defendant. No contract relations existed between the plaintiff and the interpleaded defendant, and while the interpleaded defendant claimed ownership of the property under the principal defendant, such ownership was in no way subject to any rights or interests on the part of the plaintiff. The interpleaded defendant admittedly is a third party, not in any manner, involved in the litigation between the plaintiff and defendant in the civil court action, and his property, if it is either attached or levied upon on a claim made by the plaintiff in the civil court action, is wrongfully and tortiously taken and held.
The general rule, sustained by the great weight of authority, is to the effect that a person whose property has been seized by an officer under, process against the property of another may maintain an action of replevin for the recovery of the property no matter from whose possession it was taken. 23 Ruling Case Law, 879, and numerous cases there cited. These cases proceed upon the theory that where property of one person is seized on a process against another there can be no legal custody, but that the- same is tortious and that the person aggrieved thereby is entitled to the same remedy in the law as for any other tortious act. Gilman v. Williams, 7 Wis. 329; Booth v. Ableman, 16
And. while the general rule appears as above stated, a defendant in an execution or attachment cannot replevy goods in possession of an officer under a valid process, for to allow him to question the validity of the seizure in an action of replevin would be against public policy, for it would be moving in a circle, and the creditor would never receive the fruits of his execution. 23 Ruling Case Law, 877; Power v. Kindschi, 58 Wis. 539, 17 N. W. 689.
But for the intervention provided for by sec. 2767 of the Statutes the plaintiff herein would have no remedy to recover possession of its property wrongfully attached and detained excepting by the action of replevin.
The action of replevin is founded on a tortious taking and detaining and is analogous to an action of trespass, but is in part a proceeding in rem to regain possession of the goods and chattels, and in pa^t a proceeding in per-sonam to recover damages for the caption and detention. It.is a possessory action, the gist of which is the right of possession in the plaintiff and the wrongful seizure and detention by defendants, and the primary relief sought is the return of the property in specie, the damages being merely incidental. 23 Ruling Case Law, 854, 855.
In the affidavit for replevin the plaintiff must allege that the property has not been taken for any tax, assessment, or fine, pursuant to the statute, or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure. Sub. 4, sec. 2718, Stats. It would appear that the owner of property in all cases not included in the exceptions above quoted is entitled to maintain his action of replevin against any one.who may have wrongfully taken or who wrongfully detains the same. The action of replevin being one of the original common-law actions based upon wrongful
The plaintiff having taken issue in the garnishment proceedings in the civil court with the answer of the inter-pleaded defendant, and thereby having asserted title in the' defendant and garnishment rights as against it, the-plaintiff in this action, or its predecessor in interest, has been unlawfully deprived of the possession of its property, and in order to be .afforded a remedy must be given a right to damages in an independent action such as the instant case. First State Bank v. Clark, 202 Ill. App. 283; McIntosh v. Knox, 40 Nev. 403, 165 Pac. 337.
The defendant in this action further contends that the predecessor of the plaintiff in the garnishment action in the civil court could have filed a bond under sec. 2771 of the Statutes and obtained possession of the washing machines and wringers, and thereby hav-e prevented the accruing of any damage by reason of a wrongful detention of the property.
Sec. 2771 reads in part as follows:
“The defendant may at any time after the commencement of the action and before judgment file with the clerk of the court an undertaking, executed by at least two sureties, ... to the effect that they will on demand pay to the plaintiff the amount of the judgment, with all costs that may be recovered against such defendant in the action, not exceeding a sum specified, which sum shall not be less than double the amount of the indebtedness specified in the affidavit of garnishment or in such less sum as the court shall, upon application, direct. If the plaintiff shall fail to*28 take issue with the answer of the garnishee defendant within the time prescribed by law, then the undertaking provided for in this section shall be conditioned to pay to the plaintiff only the amount of the indebtedness admitted or value of the property held by said garnishee defendant. The sureties shall justify their responsibility by affidavit annexed, stating a sum which each is worth in property within this state, over and above all his debts and liabilities and property exempt from execution, the aggregate of which sums shall be double the amount specified in the undertaking.”
A careful reading of the section just quoted is conclusively convincing that .the right to furnish a bond and release- the garnishment is vested solely in the principal defendant. The interpleaded defendant is in no- manner interested in the alleged debt of the principal defendant to the plaintiff. The undertalcing provided for in said section is based primarily upon the amount of the alleged claim of the plaintiff in the civil court action against the principal defendant, and the amount thereof, unless otherwise ordered by the court, is double the amount of plaintiff’s alleged claim. Garnishment proceedings, as has heretofore been stated, are purely statutory, and the provisions of the statutes must be strictly adhered to. If it had been the intention of the legislative body to permit the interpleaded defendant to furnish an undertaking, such intention has not been expressed. We are of the opinion that a reading of the statutes pertaining to garnishment leaves no doubt upon the subject and extends the right to furnish the undertaking solely to the defendant and not to the inter-pleaded defendant.
In Veitch v. Cebell, 105 Wis. 260, 81 N. W. 411, the court says:
“In cases of arrest and bail, replevin, attachment, injunctions, ne exeat, and receivers, the statutes make express provisions to compensate the defendant for any damages sustained. Secs. 2692, 2720, 2732, 2747, 2748, 2778. But no such provision is made in case of garnishment.”
“The defendant Cebell was at liberty to save himself from any damage by giving the undertaking required by statute, but he failed to do so. Sec. 2771. The proceedings by garnishment are statutory. McDonald v. Vinette, 58 Wis. 619, 17 N. W. 319; Morawetz v. Sun Ins. Office, 96 Wis. 175, 71 N. W. 109. Since there is no statute authorizing such judgment for damages against the plaintiff and in favor of Cebell in the garnishee action, it is obvious that such judgment must be sustained, if at all, upon some principle of common' law. The only remedy, if any,*for a principal defendant whose funds are thus improperly tied up by garnishment would seem to be in an action for malicious prosecution.”
The above quotation from the Cebell Case clearly distinguishes that case from the instant case, and the remedy for malicious prosecution referred to in the Cebell Case has only application', to the principal defendant and not to an interpleaded garnishee defendant.
The development of the law and the statutory enactments now authorizing a defendant, whether the principal defendant or garnishee defendant or one whose property has been wrongfully attached, to commence an action for malicious prosecution arising out of criminal proceedings, attachment proceedings, or garnishment proceedings, is fully set out in 2 Ruling Case Law, 896, 897. _ It appears that one who is maliciously prosecuted in a criminal action originally had no recourse against his prosecutor for damages. This situation was changed subsequently by judicial decisions, and in the course of timé such actions were made applicable to attachment proceedings where the attachment was wrongfully and maliciously begun. Such being the state of the law when the statutes on attachments were first en
In cases where the property is recovered to the owner, the damages are usually measured by interest and depreciation in value. In most cases interest on the value from the time of the wrongful taking is a proper measure. But where the property depreciates in value during the time of the wrongful detention the owner is also entitled to damages for the amount of the depreciation. Recovery of attorney fees, excepting as provided by statute in the form of taxable costs, etc., is not included or contemplated by the replevin statutes, and we therefore hold that, inas
By the Court. — The order of the lower court sustaining defendant’s demurrer to the plaintiff’s complaint is therefore reversed, with directions to the lower court to overrule the demurrer, with costs, and the cause is remanded for further proceedings according to law.
Dissenting Opinion
(dissenting). There was here no'interference by the garnishee proceedings with any actual possession of the property by the plaintiff, for it never had actual possession until the goods were returned to it at the close of the garnishee action. It at all times had no more than a right to claim and take actual possession of the property as security for the repayment to it of the sums advanced to the Blue Bird Appliance Company. In that situation there was a question properly presented as to whether the right of the plaintiff to have possession of the property was superior to the claim asserted by the defendant here as plaintiff in the garnishee action.
Upon the issue thus presented and which became the only one, both parties had their day in court in the ordinary method of procedure and the result was in plaintiff’s favor. It is now being permitted to assess damages against the defendant here, plaintiff there, far in excess of that which is recognized in the ordinary litigation in civil actions. A penalty is now being visited upon the defendant as an unsuccessful party in a civil action involving merely the question of whose claim to immediate possession of the personal property was the paramount one. That it is not the general purpose of the law to. visit penalties other than those prescribed by the statute regulating and fixing the amount of costs as against a party who in good faith, though
No question is raised but that the present action is one founded upon a tort instead of upon contract, and the basis of such action is necessarily upon the theory that there was an unlawful use of judicial proceedings whereby there was interference with plaintiff’s right to possession of personal property.
The general rule is well established that to support an action for damages for. the unsuccessful bringing of another civil action the first judicial proceedings must have been instituted with malice and 'without probable cause. 1 Cooley, Torts (3d ed.) 348. And the same rules are held to apply to actions of this kind as they do' to malicious prosecution of criminal proceedings. Ibid. 353.
The doctrine is firmly fixed here, as is shown in the following cases in this court:
In Magmer v. Renk, 65 Wis. 364, 27 N. W. 26, an action for malicious prosecution by the bringing of a replevin suit for the purpose of injuring the plaintiff in his business as a baker by depriving him, of the use of his property, the court said (p. 367) : “In order to recover it was essential for the plaintiff to prove both the want of probable cause in bringing the replevin suit and malice on the part of the defendant.” The findings in that case were to the effect (p. 369) that the mortgage the defendant then held was such that the defendant did not honestly believe he was authorized to take and hold the goods in question, that he did not have probable cause to commence the replevin suit, and that he acted wilfully, maliciously, and with intent to injure the plaintiff.
In Collins v. Shannon, 67 Wis. 441, 30 N. W. 730, in an action for wrongful attachment which had been issued upon allegations charging fraud, this court said (p. 445): “If the plaintiff had simply proved that he was not indebted
Luby v. Bennett, 111 Wis. 613 (87 N. W. 804, 56 L. R. A. 261), was to recover damages for the alleged malicious prosecution of an action for the dissolution of a partnership and for a receiver and the taking possession of personal property thereunder. The complaint expressly charged (p. 615) malice and want of probable cause. There is a full discussion of the subject of lack of remedy for the malicious bringing of a civil suit where there is no interference with person or property, commencing at page 620, and it was stated (p. 626) that “the same reasoning that supports an action for damages for maliciously and without probable cause instituting and prosecuting proceedings to have a person declared a bankrupt applies to an action maliciously brought to wind up a partnership, founded on alleged misconduct of the defendant.” It was also held (p. 627) that an equitable levy upon property, as in'garnishee proceedings, whereby property is taken out of the custody of the owner and out of his free control which causes damage not reached by a mere judgment of vindication or for costs, is sufficient basis for such an action.
The same view is suggested in Ashland Co. v. Stahl, 48 Wis. 593, 596, 4 N. W. 752.
That malice and want of probable cause are essential in an action brought on the statutory bond' for wrongful
The same rule is applied in actions for damages resulting from restraining the plaintiff in the use of a patented article by injunction, where malice and want of probable cause are essential elements to any right to recover. H. P. Rieger & Co. v. Knight, 128 Md. 189, 97 Atl. 358, L. R. A. 1916E, 1277, note p. 1282; Krzyszke v. Kamin, 163 Mich. 290, 295, 128 N. W. 190.
Where a tort action was brought to recover damages for causing plaintiff’s property, which he had then contracted to sell to another, to be attached, hoping thereby to prevent such sale and compel the plaintiff to sell to defendant, it was held that malice and want of probable cause must be shown. Malone v. Belcher, 216 Mass. 209, 211, 103 N. E. 637.
An unsuccessful adverse claim to real estate does not subject one to a suit for damages. Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354.
Some authorities, however, do hold that damages may be recovered in a subsequent action for the wrongful issue of an attachment without a showing of malice and w.ant of probable cause, which when shown, however, may warrant punitory damages in addition, in such cases as Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okla. 226, 160 Pac. 914, L. R. A. 1917B, 350, relying upon Overton v. Sigmon F. Mfg. Co. 50 Okla. 531, 151 Pac. 215, where it was held that, in view of the provisions of their -statutes requiring a bond in attachment proceedings under certain conditions, the common-law rule is modified and permits an action independent of the bond to recover attachment damages in the absence of the recognized essential elements of malice
Further cases so holding are McIntosh v. Knox, 40 Nev. 403, 165 Pac. 337, but there the right to recover without showing malice or suing on a bond was given to one who was not, as was plaintiff here, a party to the garnishment proceedings; also First State Bank v. Clark, 202 Ill. App. 283 (followed in Strobot v. Cordes, 207 Ill. App. 442, 443), both cited in the majority opinion.
Because the present holding seems to be a wide departure from the former judicial policy of this state I cannot concur in the result.
