7 N.W.2d 414 | Wis. | 1942
It is contended that under O. L. Packard Machinery Co. v.Laev,
In Wisconsin F. M. Co. v. Capital City C. Co., supra, the Capital City Canning Company owed the Security State Bank something more than $6,000 and deposited warehouse receipts for canned goods in storage. The Security State Bank was the garnishee defendant in the Wisconsin F. M. Co.Case. The plaintiff garnished the bank upon a claim against the Canning Company of $1,300, subsequently reduced to judgment. The first garnishment was on November 20, 1926. On December 11th, the Canning Company gave orders to the garnishee defendant to pay out of the collateral unnecessary to its security, certain sums to one Hintze, a creditor. The goods were sold on September 27, 1927, for an amount more than *65 necessary to pay the obligations of the canning company to the bank. On June 30, 1928, plaintiff commenced a second garnishment action. This court held that the second garnishment was too late because the rights of Hintze had been fixed by that time. It held, however, that the original garnishment which was in advance of the sale of security was sufficient to tie up such interest as the pledgor had in the surplus existing after sale of the collateral. The court said (p. 159):
"Whatever of an interest the Canning Company had in the pledged property or the possibility of the surplus arising from the future sale thereof on December 11th, it had at the time of the garnishment in November, and we can find no grounds or logic for holding that such an interest, though sufficient to uphold a voluntary equitable assignment thereof by the debtor, would be insufficient to support an involuntary lien or equitable attachment thereof by garnishment. We cannot differentiate, as would be required to uphold appellant's contention, between the Canning Company's interest that could be assigned by the order of December 11th and the interest that the Canning Company had subject to garnishment as specified in the quoted language from the garnishment statute supra."
The fact that the indebtedness by pledgee to pledgor was contingent upon the production of a surplus through a sale of the collateral would not preclude plaintiff from proceeding in garnishment. Sec. 267.09 (1), Stats.
By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
BARLOW, J., took no part. *66