J. I. Case Threshing Machine Co. v. Miracle, 54 Wis. 295

54 Wis. 295 | Wis. | 1882

Lyon, J.

The precise question presented by this appeal may be thus stated: Can a legacy to a judgment debtor be reached by garnishee process against the executor, issued and served before the final order of distribution; the trial of an issue taken upon the answer of the garnishee having been had after such order was made directing the executor to pay such legacy to the judgment debtor? The authorities are almost unifoYm that an executor or administrator is not liable to garnishee or trustee process before a final order for the distribution of the estate is made, unless he is rendered so liable by some provision of statute. We have no statute in this státe which takes such a case out of the general rule. Many of the cases which uphold this rule are cited in the brief of counsel for defendant. Indeed, we have been referred to but one case — Stratton v. Ham, 8 Ind., 84 — which holds the contrary rule. This is an exceptional case, and in a learned and elaborate note appended to it numerous cases arer cited, and the unsoundness of the decision demonstrated on principle and by authority. Very many of the cases referred to were decided upon statutes not distinguishable from ours in principle, and the rule is too firmly established to be now overturned by judicial decision. That must be done, if done at all, by the legislature, as it has been in some of the states.

This' court held, in Hill v. Railroad Co., 14 Wis., 291, that a sheriff having moneys in his hands collected on execution in favor of a debtor, is not liable to garnishment. The reasons there given for the judgment are equally applicable to the case of an executor, especially before an order is made for the final distribution of the estate. See also Burnham v. Fond du Lac, 15 Wis., 193; Buffham v. Racine, 26 Wis., 449. True, Dixon, C. J., vigorously dissented from the doctrine of the court in the three cases last above cited; yet they must be regarded as settling a principle which is applicable to and must control our judgment in the present case. It must be hold, therefore, that the executor, when summoned, was not liable to garnishment, and hence that the action against him fails. Manifestly it was not saved by the circumstance that the garnishee action remained in court until after the order of distribution. It is like the common case of an action prematurely brought. Such, an action must abate, notwithstanding a cause of action has matured fendente lite. Whether the executor is liable to garnishment after the final order for settling and distributing the estate, is not here determined.

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