Leeman v. McGrath, 116 Wis. 49

Leeman v. McGrath

116 Wis. 49 | Wis. | 1902

WiNSlow, J.

Tbe verdict is very plainly insufficient to sustain any judgment in favor of tbe plaintiff. It does not show a cause of action for malicious prosecution, because neither malice nor want of probable cause is found.

Tbe respondent claims that it shows actionable abuse of process, but this claim is equally untenable. It simply shows that, the defendant, honestly believing that the plaintiff owed him a small account, assigned the account to another at some time after August 18, 1892, for the purpose of sending the same to Iowa for collection by garnishment in order to evade the exemption laws of Wisconsin, and that such garnishment was thereafter unsuccessfully attempted. These facts do not show actionable abuse of process. In the absence of some statutory prohibition, or the express inhibition of a court of equity, the defendant has a legal right to assign the claim to another, and send it to another state for the purpose of bringing garnishment proceedings in that state for the very purpose of securing the advantage afforded by the exemption laws of Iowa. This was the privilege that was open to him in common with all citizens of the United States. Harwell v. Sharp, 85 Ga. 124, 11 S. E. 561, 8 L. R. A. 514. There was no statute in this state forbidding such a proceeding until the passage of cb. 51, Laws of 1893 (Stats. 1898, see. 4438/), which went into effect March 29, 1893. Whether the violation •of this statute alone would constitute an actionable wrong for *52which damages could be recovered in a civil action is a question we do not have to consider, as the complaint alleges that the assignment of the claim was made before the 1st day of March, 1893, and that thereupon the claim was taken to Iowa for the purpose of collection by action. There is no finding in the verdict which contradicts this allegation; hence it stands as a fact in the case that all the acts which are denounced by ch. 57, Laws of 1893, as unlawful, occurred before that act went into effect. In Griggs v. Doctor, 89 Wis. 161, 61 N. W. 761, it was held that a court of equity might properly enjoin an attempt to evade the exemption laws of this state by the prosecution of garnishment proceedings in a foreign state against one of our own residents. This principle, however,, is of no avail here. A court of equity enjoins the commission of many acts for the commission of which a court of law could give no damages.

By the Court. — Judgment reversed, and action remanded with directions to render judgment upon the verdict for the defendant.