John R. Davis Lumber Co. v. First National Bank of Milwaukee

87 Wis. 435 | Wis. | 1894

Newman, J.

The proposed amended answer, with the affidavits used on the motion, fail to make a case for inter-pleading Dixon and Mrs. O’Brien, because they fail to show that the parties named, or either of them, claim the money garnished. The statute permitting parties claiming moneys in the hands of a garnishee to be interpleaded is sec. 2767, R. S. It is as follows: “When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may, on motion, order such claimant to be interpleaded as a defendant to the garnishee action.” No doubt the word “ claims,” in this statute, has its ordinary meaning and force. It is the active transitive verb, and has the force of “ asks for,” or “ demands as his due,” and is not equivalent to the phrase “has a right to,” or “ owns.” The statute which gives this remedy must be followed with substantial strictness, or the party will fail of his remedy. The person who may be interpleaded is one who claims the debt or money. It is plain that the garnishee has failed to disclose, in his proposed amended answer, that either Dixon or Mrs. O’Brien has claimed this money. All that is disclosed is that they “ own ” or have a “ claim ” which they could make for the money. If they do not in fact make claim to the money, they are not such. parties as the statute permits to be interpleaded in the action.

If Dixon and Mrs. O’Brien, or either of them, did in fact own the garnished money at the time of the commencement of the garnishee action, and still own it, that fact would be a complete defense to the garnishee against the action of the plaintiff. It is not liable to garnishment at suit of the plaintiff if they own it. Such alleged ownership was attempted to be shown upon the motion by affidavits stating it only on information and belief, while, in resistance of the motion, facts are stated which tend to show that they are not the owners. The preponderance of the evidence is certainly against their ownership. The fact that they have not claimed it within the long time which has elapsed discredits it. Besides, the garnishee had all the information which it now claims, of the rights of Dixon and Mrs. O’Brien, before the action was tried in justice’s court. It should have made its application to amend so as to set up their title before the action was tried in that court. This was so held by this court on the former appeal. 84 "Wis. 1. It is reasonable to require some fair degree of diligence in making application for such relief. It was no abuse of discretion to deny the motion.

By the Court.— The order of the superior court of Milwaukee county is affirmed.