41 Wis. 395 | Wis. | 1877
The errors assigned on behalf of the appellants will be stated and briefly considered in their order.
“ 1. The affidavit upon which the commissioner’s order was issued, does not show whether the party required to appear had any property of, or was indebted to, the judgment debtor. The language must be positive, showing one or the other.”
The garnishee proceeding against the appellant Ewen is in the nature of an ordinary civil action. The affidavit performs the office of a complaint, in such an action, and should be tested by the same rules, rather than those which are applied to attachments and other harsh proceedings. Yet this court has held that an affidavit for an attachment in the very words of the statute is sufficient, if perjury may be assigned upon it. Miller v. Munson, 34 Wis., 579; Mairet v. Marriner, id., 582. See also Klenk v. Schwalm, 19 Wis., 124 (Vilas & Bryant’s edition), and eases cited in head note.
In ordinary civil actions, an averment in the complaint on information and belief, of a fact not presumed to be within the personal hnowledge of the plaintiff, is sufficient. Even in an affidavit for an attachment, an averment in the disjunctive, as that a person is indebted to or has property of another in his possession, would probably be sufficient, within the doctrine of the above cases. It certainly would be sufficient in a complaint, after verdict. In the proceeding before us, the record fails to show that the specific objection was taken before the commissioner, that the affidavit is insufficient.
We conclude that the alleged error under consideration is not well assigned.
“ 2. Proceedings under this section of the statute cannot be maintained on a judgment against a corporation.”
This proceeding was instituted under sec. 91, ch. 134, R. S.,
3, 4 and 5. The alleged érrors are, in substance, that no notice of the proceedings before the commissioner was given to the judgment debtor, and it is claimed that the order of the commissioner should be vacated for that reason, if for no other.
The statute confers upon the judge or commissioner before whom a proceeding like this is instituted, the power to cause such notice to be given, if, in the exercise of a sound discretion, he thinks it ought to be given. Sec. 91, supra. But the question whether in the present case the commissioner should have exercised that power, is rendered entirely immaterial by the fact, disclosed in the record, that the judgment debtor appeared by its attorney before the commissioner on the examination of Ewen, and made no specific objection to the |vant of notice. A general appearance without notice is a waiver of the right thereto. This is elementary. The record of the proceedings before the commissioner, in this particular, on the return day of the order, is as follows: “ The plaintiffs appear by J". W. Bass, their attorney, and the defendant and garnishee by Geo. P. Knowles, their attorney.”
6. It is claimed that the examination of Ewen failed to disclose any money in his possession belonging to the judgment debtor; and that, if the fact were otherwise, the amount in his hands and the title thereto are so uncertain that a receiver should have been appointed to bring an action therefor, as prescribed in sec. 96 (Tay. Stats., 1567, § 108).
Although Ewen testified positively that he had no money in his hands belonging to the judgment debtor when the commissioner’s order was served on him, yet he also testified that at that time he had about $1,000 in money in a safe, which
We conclude, therefore, that the examination disclosed clearly that he held an amount of money for the judgment debtor exceeding the judgment, and that the commissioner properly ordered that the judgment be paid out of it. (Tay. Stats., 1566, § 106.)
7. The objection that Ewen was an officer of the railroad company, and hence, that he could not lawfully be proceeded against under sec. 91, is overruled in Ballston Spa Bank v. Marine Bank, supra, where the proceeding was under that section, against the president of the corporation judgment debtor.
8. The judgment debtor in this case had an opportunity to prove before the commissioners that it had been charged in other proceedings as the garnishee of the plaintiffs. Its failure to do so was laches, and it would not have been error had the circuit court affirmed the order of the commissioner without modification. The modification, whether regular or irregular, is in favor of the judgment debtor, and does not injure Ewen, and hence furnishes no just ground of complaint by either.
By the Gowrt. — The order of the circuit court is affirmed.
