Jones v. St. Onge

67 Wis. 520 | Wis. | 1886

Cassoday, J.

1. The garnishee proceedings were commenced in justice’s court. The requisites of the affidavit for garnishment in that court are prescribed by sec. 3716, E. S. The affidavit here conformed to those requirements. This was sufficient to give the justice jurisdiction, without stating the amount of the plaintiff’s claim against the defendant over and above all offsets, as required in an affidavit for garnishment in the circuit court by secs. 2753, 2768, E. S., as amended by ck. 86, Laws of 1881, and ch. 286, Laws of 1885. An amendment to a particular section of the statute prescribing a certain practice in the circuit court, does not, by mere implication, amend a different section prescribing a similar practice in justice’s court.

2. St. Onge appeared in the justice’s court and the circuit court, and defended the proceedings against the garnishee, upon the ground that the indebtedness of the garnishee was not liable to garnishment. This he was authorized to do by statute. Sec. 3723, R. S.; Garland v. McKittrick, 52 Wis. 265. He still insists upon such defense. The argument is, in effect, that as St. Onge only had a verdict in an action of tort against the Connors at the time of the service of the garnishee process, it was not subject to garnishment. But it had ripened into a money judgment long before judgment in the garnishee suit. Where the plaintiff recovers against the defendant in the original action commenced in a justice’s court, and the answer of the garnishee, when no issue is made thereon, or the finding of the court or jury on an issue, shows that the garnishee at the time of service of the summons was indebted to him, the justice is required to enter an order in his docket requiring the garnishee, within ten days, to pay the amount of such indebtedness, or so much thereof as may be necessary to satisfy such judgment, with costs thereof, and the costs of the garnishee proceedings. Sec. 3725, E. S.; Laws of 1880, ch. 207. “Ho final judgment shall be rendered against the garnishee until final judgment be rendered against the defendant in the original action; but no judgment shall be rendered against a garnishee, or any money or property be required to be delivered by him to the justice, upon any liability arising out of either of the causes mentioned in sec. 2769.” [E. S. sec. 3727.]

The liability hei’e sought to be garnished did not arise out of either of the causes therein mentioned. That section provides, among other things, that “ no judgment shall be-rendered upon liability of the garnishee arising . . . (4) by reason of any money or 'other thing owing from him to the defendant, unless, before judgment against the defendant, it shall home become due absolutely and without depending on any f abure contingency? Here the money judgment in the action of replevin, w'hich was entered and docketed long before the judgment against St. Onge in this action in the justice’s court, became at once a debt, due absolutely and without depending on any subsequent contingency. It was, therefore, subject to garnishment, though contingent at the time the garnishee papers were served.

It is in no sense like Case T. M. Co. v. Miracle, 54 Wis. 295, which turned upon the character or trust capacity of the garnishee, and not upon the nature of the demand. The right of garnishment having thus been expressly given by our statutes, it is unnecessary to distinguish decisions in other states under different statutes, making the right of garnishment to depend upon the nature of such indebtedness or liability at the time of the service of the garnishee process instead of at the time of judgment in the garnishee suit as our statute cited does. The construction given to the statute cited is strengthened by the provision of sec. 2710, R. S., which precluded St. Onge from issuing an execution on his judgment against the Connors, subsequent to the service of the garnishee summons, until the termination of the garnishee action.

3. The mere fact that the judgment against the Connors and in favor of St. Onge was rendered in the circuit court, did not prevent its being garnished in the justice’s court. The garnishee process operated upon the parties, and not upon the circuit court. The order to pay was made after the rendition of such judgment, and hence in no way frustrated the jurisdiction of that court.

4. The mere fact that the judgment in -the circuit court was against the Connors and their sureties did not prevent the garnishment of the Connors alone, since they were primarily liable for the whole amount of the judgment.

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