Gleason v. South Milwaukee National Bank

89 Wis. 534 | Wis. | 1895

PiNNEY, J.

The finding, which appears to be supported by the evidence, shows that the transaction between Whalen and the bank was incomplete at the time the garnishee process was served. The delivery of the order upon which the plaintiffs rely to charge the garnishee was not completed so as to pass title to the’ order and prevent Whalen from retaking it, and the bank had acquired no right, as against him, to retain it. When Whalen handed the order through the wicket, properly indorsed, if the cashier had refused to pay the money and claimed the right to hold the order to some ether use or purpose, Whalen would have had a perfect right, if within his reach, to take the order, and to refuse to proceed further in the transaction. "Whatever delivery there was into the power or control of the cashier, so long as the order remained equally within the power or control of "Whalen, was, as between him and the bank, not absolute,, but conditional upon his receiving the money.. The order was not placed upon the counter with any other view or purpose. Until he received the money he had a right to retake it, as it was found he did, before the process was served on the cashier and while the latter was stepping to the door at the end of the counter to meet the officer. The consequence is that when the bank was served with the garnishee process it did not hold the order for the judgment debtors, and, as it failed to acquire any title to it, it was not indebted to them for it.

Besides, there is a further view of the case that is decisive-against the plaintiffs. A party may in certain cases have the possession or control of property of another for the time-being, and yet not be subject to garnishee process, as is aptly illustrated in the case of Staniels v. Raymond, 4 Cush. 314, where the transaction, like the one under consideration, had not been completed. The property in that case (a cow) came to the possession of the party sought to be charged, on trial, with a view of purchasing her, and he had notified the owner he would not buy her. In that case, cited with approval in Bates v. C., M. & St. P. R. Co. 60 Wis. 307, the court said r. “We think it could never have been the intention of the legislature that the mere possession of property by a party having no claim to hold it against the owner, should render him liable as trustee, and thereby subject him to trouble and, expense in answering to a claim in which he has no interest». Such a construction of the statute would be prejudicial in very many instances, and cannot be admitted.”

The garnishee was properly discharged.

By the Court.— The judgment of the superior court is affirmed.