66 Wis. 42 | Wis. | 1886
The plaintiff having commenced suit against the defendant Ilanscom for the sum of $347.86, summoned Andrevj Jackson as garnishee on the 26th day of June, 1883, claiming that he was indebted to the defendant, and said garnishee answered, disclosing substantially the following facts: On the 20th day of October, 1882, the said Jackson entered into a contract in writing with said defendant and one Bcmis, by which they were to cut, get out, and raft over 2,000,000 1‘eet of logs from his land. At the time of the service of the garnishee summons this contract was not completed, but had progressed so far that he had paid
The plaintiff took issue upon the garnishee’s answer disclosing these facts, and caused the said E. Coolidge and Myron Reed, composing the firm of Coolidge & Co., and the said Mueller, to be impleaded; and upon their answers and the evidence before the referee these further facts appeared: Soon after the said assignment, and probably on the same day, it was agreed between Hanscom and Coolidge & Co. that after the completion of said contract by them, and the payment to them of their claims out of the proceeds thereof, they should pay to certain creditors of Hanscom, in the county of "Waupaca, their several claims, amounting in the aggregate to about $2,000, out of the overplus coming to him on said contract, and said creditors were notified thereof and assented thereto. The said garnishee, Jaelison, accepted the said order to Mueller before he had notice of said assignment to Coolidge & Co., and had become liable as garnishee in other cases for nearly $800, which he has since paid, but he had left unpaid said order, and since then there have been paid liens on said logs of between $800 and $1,000. At the time the cause was referred, May-14, 1885,
The final findings and judgment of the court were (1) that the said Myron Reed and E. Coolidge be paid said costs and fees of $326.64, together with said sum of $1,812.09; (2) that said Mueller be paid said sum of $391.35 on said order; (3) that the plaintiffs be paid their judgment in the action of $426.64; (4) that Mueller recover his costs of garnishee, Jackson/ and (5) that the plaintiff recover its costs of Jackson.
This statement of the case is sufficient to make intelligible the points raised on the argument of the appeal, Avith-out specially and formally noticing the Amrious exceptions
Sharpless v. Welsh, 4 Dall. 279, distinguishes such a promise and such a direction from an assignment, and is a case in point. A. placed in the hands of B. a bill of exchange, and ordered B. to negotiate it and pay the proceeds to certain creditors, and B. promised to do so, and informed such creditors of the order. It was held to be clear that there could be no revocation of the appropriation of the fund after the creditors had notice of it and had assented to it. Under such circumstances it was held good against an attachment or garnishment subsequently served. See, also, Palmer v. Mason, 42 Mich. 146; State Bank v. Chapelle, 40 Mich. 447; and other cases cited in appellants’ brief.
1. The court erred in respect to this claim upon the fund, and the Waupaca creditors should have been preferred to the plaintiff.
2. Wc think the circuit court also erred in rejecting the claim of Coolidge & Co. for the services and expenses of the Honorable Myron Reed of said firm in traveling- to and fro and attending to the necessary business of completing said contract, and which were found to be worth $260. There is no more reason for allowing any other claim incurred by them necessarily and properly in and about such business than this one. It stands upon the same footing as the costs paid in said suit, and of all payments to others properly employed in the completion of the contract.. This claim was honestly and necessarily incurred, and should be a charge upon the fund which the services and expenses of Mr. Reed as attorney at law contributed to obtain and
3. "We think also the court erred in its judgment against Jackson for costs in favor of the plaintiff. It was found that, at the time -the garnishee summons was served upon him, Jackson owed nothing on his contract, but had overpaid Hanscom for what had been done on it. Jackson made truthful answer, and disclosed all the facts within his knowledge, and appeared to be indifferent and not hostile to the claim of Hanscom or of the plaintiff. In respect to the garnishment, he appeared as an indifferent and disinterested stakeholder of the fund, submitting to the court on the facts his liability to the several claimants. The record, it is true, states that an issue was made upon his answer; but no fact stated in his answer was disproved, and the formal issue only served to keep the suit pending until the. completion of the contract and all persons interested had interpleaded and answered at the plaintiff’s instance, and there was 'finally no controversy as to the amount found due Hanscom or Coolidge & Co. under the contract. It is certainly not a case where the garnishee ought to be taxed with the costs. ■ He should rather recover his costs from the plaintiff in such a case.
4. We think Mueller properly recovered his costs against Jackson, because there was no good reason why he did not pay his claim against Hanscom on Hanscom’s order accepted by him, and Mueller was compelled to interplead in this action to obtain its payment.
If this fund had been large enough to satisfy all these claims, the question of the order of their payment and priority would not be difficult. The, judgment should be so modified that the claims should be paid in the following order: (1) The full claim of Coolidge & Oo. (2) The claim of Mueller. (3) The claims of the Waupaca creditors named.
By the Court. — -The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment in accordance with this opinion.