211 Wis. 42 | Wis. | 1933
The defendant Ridenour was not a party to the action but was brought in under the provisions of ch. 273, Stats., entitled “Remedies Supplementary to Execution.” Under that chapter a judgment debtor may be compelled to answer as to his property either by summons or by a warrant of arrest. When the judgment debtor appears he may be examined upon oath and witnesses may be required to appear and testify as upon the trial of an issue.
By sec. 273.08 it is provided:
“The judge may order any property of the judgment debtor in the hands either of himself or any other person or due to the judgment debtor, not exempt from execution, to be applied toward the satisfaction of the judgment.”
It is further provided:
“But if it appear that any person alleged to have property of the judgment debtor or to be indebted to him claims an interest in the property adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such person by the receiver.”
Upon this appeal the question is raised as to whether or not Ridenour is a real party in interest. If he is -not a
“The adverse party does not necessarily include merely the opposite party appearing upon the record. A person may be an appellant or an adverse party within the meaning of the statute and his name not appear in the litigation resulting in the decision at all. If he has a substantial interest adverse to the decision, that is all that is required for an appellant, whether it be direct or by privity creatéd between himself and the person against whom the decision was rendered by reason of succeeding to his rights after the decision or subsequent to the commencement of the action. (Citing cases.) To determine when the appeal statute is satisfied as to an appellant or a party aggrieved or an adverse party, while, prima facie, the original parties on the record may answer, the supreme test is the possession of some substantial interest adverse to the judgment, a revision of which is sought in the appellate court.” Harrigan v. Gilchrist, 121 Wis. 127, 207, 99 N. W. 909; Hinn v. Gersten, 122 Wis. 222, 99 N. W. 338.
It is considered upon the authority of these cases that Ridenour has a right of appeal. While to some extent the remedies supplementary to execution may operate as a garnishment, the proceeding supplementary to execution is not an ancillary proceeding. This is made clear by the provisions of sec. 273.08, Stats., to the effect that, if the witness deny the debt, the debt shall be recoverable only in an action against the person by the receiver. By the commencement of such an action the person who is the custodian of the property becomes a party to an action in which the title to the fund may be determined.
We are earnestly urged by the plaintiff to determine upon this record whether the money offered as a bribe to a police officer is forfeited to the city. Manifestly if there is anything to determine with reference to the legal status of the
A substantial question as to the title of the fund held by the defendant Ridenour having been raised, the court commissioner was without power to order payment. If necessary to preserve the fund he should have taken the proper steps under the statute and remanded the parties to an action by the receiver against the defendant Ridenour in order that the question might be fully litigated.
By the Court. — The order appealed from is reversed, and cause remanded with directions to set aside the order of the court commissioner issued in the proceeding and certified to the circuit court.
2 Page on Contracts, § 1066.
