117 Wis. 394 | Wis. | 1903
The proceedings in garnishment are statutory. In order to garnish the defendant corporation, it was necessary that the affidavit therefor should, among other things, state that the indebtedness from the corporation to the defendant, Armstrong, was “not by law exempt from sale on execution.” Sec. 3716, Stats. 1898. The affidavit in question does so state. From the time of the garnishment the statute made the corporation “stand liable to the plaintiff to the amount” of its indebtedness to Armstrong “then due or to become due, and not by law exempt from sale on execution.” Sec. 3719, Stats. 1898. Under the statute the affidavit for garnishment was properly “deemed a sufficient complaint in the action.” Sec. 3721, Stats. 1898. Since the affidavit constituted the complaint against the garnishee, it naturally follows that the burden of proving the essential fact of nonex-emption therein alleged was on the plaintiff, as against any claim for exemption on the part of Armstrong or the garnishee. Armstrong, as well as the garnishee, was at liberty to defend the garnishee action on the ground that such indebtedness was exempt. Sees. 3722, 3723, Stats. 1898. Had either of them done so, it would have been necessary for the municipal court to have found that such indebtedness, or some part thereof, was not exempt, or else to have discharged the garnishee. Id. But neither of them made such defense in the municipal court, nor appeared in the action in that court. Accordingly, on the return day, judgment was entered by default, not only against Armstrong, but also against
“If any justice’s judgment or any part thereof be collected and the judgment be afterwards reversed the appellate court shall order the amount collected to be restored with interest from the time of the collection; such order may be obtained upon proof of the facts, upon notice and motion, and may be enforced as a judgment.” Sec. 3772, Stats. 1898; Lewis v. C. & N. W. R. Co. 97 Wis. 368, 370, 72 N. W. 976.
This departure from the direction of the statute is an irregularity, which we are not at liberty to sanction.-
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the garnishee proceeding and to order the amount collected to be restored to the defendant, Armstrong, with interest from the time of the collection, to be enforced as prescribed in the section of the statute last quoted, and for further proceedings according to law.