Johann v. Rufener

32 Wis. 195 | Wis. | 1873

LyoN, J.

This proceeding was not instituted to recover a debt owing by the garnishee to the judgment debtor, but to reach specific money, conceded to have been in the hands of the garnishee when he was summoned as such, and which money, it is claimed, belonged to the judgment debtor.

The proofs upon which the order which the garnishee seeks to have vacated, was made, clearly show that he was about to do acts in violation of the plaintiff’s rights respecting the subject of the action, and tending to render ineffectual any judgment which the plaintiff might obtain. As the case then stood it was clearly a proper one for the interposition of the court by injunction, to prevent the threatened mischief. But an injunction which should merely restrain the garnishee from talcing the money out of the state, would be a very inadequate remedy, because it would not be violated until he had passed beyond, the jurisdiction of the court, and the court would be left powerless to punish him. Hence the only mode by which the court could fully protect the plaintiff was to award a mandatory injunction, which not only restrained the garnishee from taking the money out of the state, but also required him to pay the same into court. Hence the order was properly made.

Do the affidavits read on the hearing of the motion to vacate show any sufficient grounds for vacating the order? We think not. It was the duty of the garnishee in the Rosenheimer case to exhaust all legal means to avoid a judgment against him therein. This he failed to do. After the justice had given judgment against him, instead of removing the same to the circuit court by certiorari, which only raised the question of jurisdiction, he should have appealed, and the circuit court, being informed of tbe fact that tbe garnishee summons in this action was first served, and on proper application therefor, would have stayed proceedings in the Rosenheimer case until the final determination of this action. Prentiss v. Danaher, 20 Wis., 311; Danaher v. Prentiss, 22 id., 317, 319. The payment to Mrs. Rufener was entirely voluntary. We have pointed out, in the opinion in this case, the way in which he might have relieved himself from all liability to her, in case the money belonged to her. Both these payments were, in one sense, made in his own wrong, and he can have no benefit of them in this action. Whether they were made fraudulently, or whether honestly, and under advice of counsel, is quite immaterial. Unless lawfully made, they cannot affect the rights of the plaintiff. If, on the trial of the issue, the garnishee proves that Rosenheimer’s claim has precedence, he will defeat the action pro tanto; and if the plaintiff fails to show that the money in controversy belongs to the judgment debtor, the action will be defeated entirely. But until that time the payments made by him, under the circumstances as they are made to appear to the court by the affidavits before mentioned, cannot avail the garnishee.

The motion must be denied. But, inasmuch as the cause has been decided and is to be remanded to the circuit court, we have thought proper to so modify the order that the garnishee be required to pay the money into the circuit court, or, instead thereof, that he file in that court an undertaking, with sufficient surety to be approved by the court or judge, that he will pay over the same when required so to do by the order or judgment of the circuit court.

By the Court.— So ordered.