27 Wis. 572 | Wis. | 1871
Lead Opinion
The following opinion was filed December 31, 1869. Paine, J., having been of counsel for one of the parties, took no part in the decision.
I cannot agree with the learned counsel for the defendants in the construction which he seeks to establish for the act of March 14, 1864—
But the evils to be anticipated, and which counsel urges must result from this construction, will be greatly diminished, if not entirely removed,- provided the
My opinion therefore is, that, upon the affidavits filed and motion made in behalf of the defendants, the proceedings here instituted should have been dismissed, unless they were sustained by additional affidavits or other sufficient written evidence produced on the part of the plaintiff. And in proceeding under this act, where no proof of indebtedness from the principal defendants to the plaintiff in the action is required before the process of garnishment can issue, I think the affidavits of the principal defendants, that they are not so indebted, ought to be esteemed as sufficient evidence upon which to dismiss the proceedings, until the contrary is shown at least by the affidavit of the plaintiff. The making of such affidavits by the defendants throws the burden of proof upon the plaintiff to show that they are so indebted; but whether in such case more is to be required of the plaintiff than the making and filing of his own affidavit of the indebtedness, is a matter which I hold in very considerable doubt. Certainly full proof of the claim of the plaintiff and of the defendant’s answer or defense thereto, is not to be gone into upon this motion to dismiss the proceedings against the garnishees; for that would be to try the merits of the original action in advance upon affidavits taken ex parte, which would be most irregular. Upon this point, therefore, I am inclined to hold that the controversy in this form should end when the plaintiff has made and filed his affidavit in clear and positive terms, showing that the principal • defendants are indebted to him, and the amount of such indebtedness over and above all legal
With regard to the other facts requisite to maintain the proceedings, that is to say, those specified in tfye act and to which the plaintiff must make affidavit in order to obtain the process, I think very much the same rule should prevail. The defendants having by affidavit explicitly denied the existence of such facts, it seems to me that it is incumbent on the plaintiff to establish them by proof in addition to his own affidavit. The remedy given by the act is, to say the least of it, a severe and harsh one, and should not be resorted to except in cases of actual necessity. The plaintiff, to obtain it, is not required to make oath to the facts themselves, but only that he has reason to believe, and does believe, that they exist. Upon this oath the plaintiff obtains the process, and when the facts are positively denied on oath by the defendants, and nothing appears to throw discredit upon their statements or to authorize greater credit to be given to the statements of the plaintiff, I think the burden rests upon the plaintiff to prove the facts with reasonable certainty by other credible evidence, and that if he fails in this, the process should be discharged. Such is the rule laid down by the supreme court of Ohio in a similar case (Coston v. Paige, 9 Ohio St. 397); though a slightly different one is held in such cases in Louisiana. Simons v. Jacobs, 15 La. An. 425, and cases' cited. And the practice adopted by the court of Ohio, I also think a good one. The court say that undoubtedly, before a motion of this kind is brought on and heard, each party should be required to file his affidavits for the inspection of the other party, so that he may not be taken by surprise. The moving party is supposed to serve and file his affidavits on which the motion is based, with the notice of motion; and I think the court in-which the motion is
I am also of the opinion that the counsel for the defendants is right in the last position taken upon his brief. I think the court should, in cases of this nature, and especially where it is made to appear that the money or property in the hands of the garnishee is in danger of being lost, or the debt becoming worthless against him, direct the payment or delivery of the same to the sheriff, or clerk of the court, or other proper officer, by whom it may be safely kept and preserved for the benefit of the person ultimately entitled thereto. This is an order which may be properly made in any case; and particularly where the principal defendants ask it. I think there can be no doubt about the power of the court in such cases, whether it be expressly granted by statute or not.
For these reasons, I am of opinion that the order appealed from should be reversed. But as the matters of practice involved are entirely new, this being the first case under the statute in* question which has come before this court, I think it should be reversed and remanded without prejudice to the rights of the plaintiff to proceed, if he desires, to oppose the motion and to sustain the proceedings instituted by him, if the same ought to be, according to the practice here indicated.
By the Court. — Ordered accordingly.
Rehearing
Upon the plaintiff’s motion, a re-hearing was
The reasons for directing a re-argument of this case appear in the opinion on the second appeal, filed May 8th, 1871.
Whether either of these grounds of objection or reversal exists, depends upon the point whether the affidavit of the plaintiff brought up to this court by supplementary return from the clerk of the court below, made in pursuance of an order of this court, is part of the record in this case, and upon the further point whether the record shows that such affidavit was used on the hearing of the motion in that court. Counsel for the defendants assumes or insists that the
The affidavit being thus part of the record, and appearing to have- been used at the hearing of the motion, the objections now taken are entirely obviated. In the affidavit the plaintiff distinctly makes oath to the indebtedness of the defendants, and its amount over and above all set-offs, which is a compliance with the rule in that respect.
The position of counsel for the defendants, that, in analogy to the practice in certain cases, like that of Allison v. Rheam, 3 S. & R. 189, the plaintiff in the original suit should be required to apply to and ask the defendants therein whether they have sufficient property liable to execution to satisfy his demand, and in what it consists, and where situated, before he can be allowed to resort to the process of garnishment given by the statute, is rejected as impracticable and unsound in cases like the present.
The order appealed from must, for these reasons, in addition to those formerly given, he affirmed, but not ■ without a direction like that formerly given, namely, that it be without prejudice to the right of the defendants to proceed in tire court below, by a new motion or otherwise, as they may be advised, to obtain a dismissal of the garnishee proceedings in accordance with the practice established on these appeals.
By the Court. — It is so ordered.