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

90 Wis. 464 | Wis. | 1895

Newman, J.

The appellant alleges three grounds of error: (1) There was no evidence of any judgment in favor of the plaintiff against Michael Dockery, the defendant in the principal action; (2) the answer of the garnishee does not admit any indebtedness to the principal defendant; and (3) the . garnishee should have been permitted to offer evidence' as to the ownership of the draft which was the subject of the gar.nishment.

1. The garnishee is not in a position to question the action of the trial court in receiving and acting upon the stipulation. It does not appear by the record that it made objection or took exception to such action. It must be deemed to have consented that the stipulation be réceived and acted upon, waiving whatever objection might have existed to such action. The stipulation was certainly sufficient evidence of. the existence of the judgment.

2. The garnishee’s answer is quite informal, and it is difficult to say with much certainty just what it was intended-either to affirm or to deny; but, with the exhibits which are attached to it, it seems to show, at least grima fade, that the moneys to be collected upon the draft were to be “ used only for account of Michael Dockery,” and that the garnishee so understood it. And there is no allegation, even on information and belief, that Dockery had transferred his title to it. The answer does say, “ the garnishee is informed that Dockery sold this lease to Dixon, and authorized him. to collect of Grill,” but does not allege this to have been the fact. Notwithstanding the general denial of indebtedness to Dockery, the facts stated in the answer show, at least grima fade, that the indebtedness was to Dockery.

3. The record fails to show that the garnishee was refused permission “ to offer evidence as to the ownership of the draft.” It does not show that it even offered to offer such evidence, or excepted to or complained of any,ruling of the court refusing to receive evidence. It certainly cannot complain of the refusal of the court to receive evidence which it was not then prepared to, and did not, offer. So, even if the ruling was theoretical error, it is not shown to have injured the garnishee. The garnishee should have offered evidence.

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