Lusk v. Galloway

52 Wis. 164 | Wis. | 1881

Cole, C. J.

It is objected at the outset by plaintiff’s counsel, that this order is not appealable. We think the point well taken. If the order is appealable, it must be because it “involves the merits of the action, or some part thereof,” within the meaning of subd. 4, sec. 3069, R. S. Notwithstanding the ingenious argument of the garnishee’s counsel on this point, we fail to perceive how this order can involve in any way the merits of the action. What is the subject matter of this action ? It is, whether, at the time of the service, of the summons, the garnishee was indebted to or had any property whatever in her possession or under her control belonging to the defendant, which should be applied to the payment of its debts. The garnishee admits that she is in possession of property, both real and personal, of the defendant, which she claims she has the right to retain and hold by virtue of a certain contract. The order simply requires her to set forth or give a copy of that contract, to the end that the court may determine from the instrument itself, as well as other evidence, the question of her liability or indebtedness to the defendant. It is the plain duty of the garnishee to make full and fair disclosures of all facts and circumstances concerning the property which she holds belonging to the debtor. If the answer was evasive, or not sufficiently clear and specific in any respect, it seems to us it is entirely competent for the court, in its discretion, to require the garnishee to make it more definite and certain. And surely, where the garnishee relies upon a contract as the basis of her right to hold a large amount of property, there is no hardship in requiring her to give a copy, so as to afford the court and opposite party an opportunity of inspection. Such an order does not involve the merits of the action, in any proper sense of those terms. It is quite the same as it would be to require the garnishee to answer fully as to all facts within her knowledge about the property, when being examined on the trial of an issue made on the answer.

It is said by the garnishee’s counsel that the court had no authority to compel an amendment of a garnishee’s answer for uncertainty. "We are unable to concur in that view of the law. The action is, doubtless, sui generis, and is founded on the statute. But the statute expressly provides that the proceeding against the garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all the provisions of law relating to proceedings in civil actions at issue shall be applicable thereto. Section 2766. Counsel insists that this provision could not apply to this proceeding until an issue was joined on the answer. But we see no good reason for thus restricting the section; and we think it was clearly within the power of the circuit court to require the garnishee to give a copy of the contract under which she claimed the right to hold all the property of the defendant, and that such an order is not appealable. It is analogous to an order under the old practice requiring a defendant in a chancery suit to make further discovery in his answer. Orders of this character must, from necessity, rest largely in the discretion of the trial court; and there is no ground for claiming that there was any abuse of discretion in this case.

The appeal must therefore be dismissed.

By the Court. — So ordered.