Pierce v. Chicago & Northwestern Railway Co., 36 Wis. 283

Pierce v. Chicago & Northwestern Railway Co.

36 Wis. 283 | Wis. | 1874

Cole, J.

The sole question in this case is, whether the defendant corporation is protected by the garnishee proceedings in Chicago. The facts upon which the question arises have been stipulated; from which it appears that the plaintiff, who is a married man and the head of a family, residing in Oshkosh, performed work for the defendant at its machine shop in that city, in the months of June, 1872, and February and March, *2871873, for which he was entitled to receive the amounts specified and which he seeks to recover in this action. In June, 1872, and Eebruary, 1873, Louis Pelleten and O. M. Tompkins, residents of Fond du Lac, and creditors of the plaintiff, commenced against him, in Chicago, their respective suits before magistrates in that city, and garnished the defendant. In those suits, notices were given and service of process was made according to the laws of Illinois in case of nonresident defendants; and judgments were finally recovered against the plaintiff in these actions, and also against the defendant as garnishee, which the defendant paid and satisfied. It is now claimed that these judgments are conclusive upon the question of the defendant’s liability as garnishee in those actions, and constitute a complete defense to this suit. It is also admitted and stipulated that no personal service was had in those suits, of any writ, summons, or notice upon the plaintiff in this action, and that he has not been in the state of Illinois, temporarily or otherwise, since January 1, 1872. And it is further stipulated that the plaintiff in this action had no actual notice of any of the proceedings in which either of said judgments was obtained. And the question therefore, is : What effect must be given these judgments, obtained under such circumstances ? Do they protect and discharge the defendant to the extent of the amounts paid upon them ? We are all of the opinion that they do not.

By the statute of this state, the earnings of a married man who has to provide for the support of a family in Wisconsin — for sixty days next preceding the issuing of any process from any court against him, are exempt, and are not liable to be garnished on attachment. Sec. 40, ch. 134, R. S. (Tay. Stats., 1553); Brown v. Hebard, 20 Wis., 326; Burlander v. M. & St. P. R'y Co., 26 id., 76; Winterfield v. M. & St. P. R'y Co., 29 id., 589. In the last case there is a very strong intimation that if the garnishee knows that the property, money or indebtedness in his possession or under his control is exempt, it is his duty, for self protection, to bring that fact to the notice of the court; *288otherwise the judgment against him, and the satisfaction there of, will be no bar to an action by the attachment defendant. Applying the rules there recognized, it was plainly the duty of the defendant company to state in its answer as garnishee, that the wages of the plaintiff were exempt. To this it is answered, that the defendant was garnished in Illinois, and could only respond as to the fact of its indebtedness to the plaintiff and its liability to pay the debt; and that it would have been of no avail for the defendant to object that the moneys due were earnings which were exempt by the laws of this state. This, however, does not fully meet the difficulty, because, for aught we know, the earnings might be exempt by the laws of that state, and in the absence of all proof upon the subject, the presumption is, that they were exempt. Rape v. Heaton, 9 Wis., 329. But there is a further and perhaps better reason for holding that the defendant is not protected by those garnishee proceedings, which is, that those proceedings were ex parte, without any service of process on the plaintiff, and no notice given him of those actions. In such a case we deem it a perfectly reasonable and proper rule to hold, that the defendant, in order to protect itself, should have notified the plaintiff of the pend-ency of these proceedings, and requested him to defend. There is surely no hardship in that rule as applied to the defendant— a corporation created and operating its road under the laws of Wisconsin, as well as under the laws of Illinois. It must be assumed that the corporation or its officers were familiar with our laws, and knew that the earnings of its creditor were exempt. It should therefore have claimed the benefit of the exemption for him; or at least have given him notice of the pendency of these proceedings, and afforded him an opportunity to defend. This we think, was essential in order to protect itself against a subsequent action by him to recover the debt. For the purposes of this case it must be treated as a domestic corporation, and it had a duty to perform in reference to the defendant in the attachment. Whether the rule *289would be otherwise in respect to a purely foreign corporation summoned as garnishee, is a question we need not consider. But in this case there can be no doubt that the defendant should have exhausted all means to avoid a judgment against it, or have given notice to the plaintiff of the pendency of the garnishee proceedings in order that he might defend against them. The case of Adams v. Filer, 7 Wis., 307, has a bearing upon the question before us ; though it is true it appeared there that Eiler was a stranger to the record in the garnishee suit. But much of the reasoning of the court in that case is applicable here to show what the garnishee should do to make the judgment against him binding upon its creditor. See also Johann v. Rufener, Garnishee, 32 Wis., 195.

It follows from these views that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.