107 Wis. 286 | Wis. | 1900
This action was commenced in the county •court November 22, 1898, to recover a balance of $95.92 due upon a promissory note executed by the principal defendant, Elmer D. Griswold, March 24, 1891, and the defendants Marcella E. Rector and Almeda E. Atkins, as trustees of Elmer D. Griswold, were garnished. The officer having returned his inability to make service of the summons on the defendant Elmer D. Griswold, for the reason that he could not be found, nor his whereabouts ascertained, service thereof was made in form upon him by publication.
The garnishees answered to the effect: That they were the trustees of the defendant Elmer D. Griswold. That their father died September 2, 1895, leaving a last will and. testament, which was admitted to probate November 5, 1895. That the third clause of the will read as follows: “To my beloved son Elmer D. Griswold I give and bequeath one hundred' dollars, he having already received at least thirteen •hundred dollars more of my estate than either of my daughters. As I have not seen nor heard from my son Elmer for .several years last past, should a period of ten years elapse without advices as to his existence, then the one hundred •dollars aforesaid, intended for my son Elmer, shall be equally •divided between my two daughters, Marcella E. Rector and Almeda E. Atkins.” That October 16, 1896, the county •court made an order in the matter of such estate in effect reciting the clause of the will quoted, and that the estate was about to be closed up and settled, and for the purpose •of closing and settling the same it was therein ordered that
The plaintiff thereupon elected to take issue, and did take issue, with such answers, and each of them. The issues thus, formed between the garnishees and the plaintiff were tried by the court, and at the close of the trial the court, on July 10, 1899, found, in effect, the facts as stated, and that for six years prior to that time the whereabouts of Elmer'D. Gris-wold were unknown to such trustees, or either of them, or-any one, and that during that time nothing had been learned, and no advices had been received, of his existence; and as conclusions of law the court found that such garnishees were-not liable. From the judgment entered thereon accordingly the plaintiff brings this appeal.
Error is assigned because the court refused to strike out the answers of the garnishees. It appears from the record that the garnishees, respectively, served their answers December 9, 1898; that on the same day the plaintiff served his election to take issue with such answers, and the same-
It requires no argument- to show that the ruling of the trial court may properly be sustained. Our statute fixes, and limits the liability of the garnishee. Sec. 2768, Stats. 1898. Under that statute this court has repeatedly held that “ a garnishee is not liable as such for property in his possession unless the right of the principal defendant thereto-is absolute at the time of the service of the garnishee process, nor for the amount of a debt if its becoming due de
By the Court. — The judgment of the county court of Fond du Lac county is affirmed.