Platt v. Sauk County Bank

17 Wis. 222 | Wis. | 1863

By the Court,

Dixopt, C. J.

It was erroneous to strike $he cause from the calendar for the reason that no issue was joined. An issue was joined, and the only question that could arise was as to whether the plaintiff had given sufficient notice of his election to have a trial thereof. T. he statute expressly declares that the affidavit mentioned in the thirty-fourth section shall be deemed tbe complaint in tbe action against tbe garnishee, and bis answer taken on bis examination shall be bis $ answer in such action. R. S., ch. 130, sec. 49.

We are also of opinion that tbe election by tbe plaintiff was sufficient. Tbe language of tbe statute upon this subject (sec. 48) is very general. The time and manner in which be shall elect or give notice to the garnishee are not specified. Indeed .no notice is required except such as is implied from the authority given tbe plaintiff to elect. If the garnishee in bis answer ..shall deny all indebtedness or liability, be shall recover judgment &e., unless the plaintiff shall elect to have«a trial on the issue formed by such answer. The answer of the garnishee, taken before the county judge, was returned and filed on the 17th of January, and on the same day the plaintiff gave notice of trial of the issue made by the answer. This was a good election, and reasonable notice thereof to the defendant.

But whether the election by the plaintiff was good or not, it was not too late for him to move for judgment on the answer, unless the. hearing of such motion should be considered a trial within the meaning of the statute. It certainly raises an issue of law, the same as that raised by demurrer to the answer in ordinary cases. An opinion upon this question is unnecessary.

The remaining question, as to the negotiability of the certificates of deposit set forth in the answer, has already been decided by this court. Such paper was held non-negotiable in Ford vs. Mitchell, 15 Wis., 304. This case is not distinguishable from that, and must be governed by the same fule. That decision is sustained by an almost unbroken current of authority, Kand we are not inclined to change it by reason of any change in the circumstances of the country. If the ^legislature deem it expedient to declare such instruments negotiable, they have the undoubted power to do so ; but such changes in the law ánd policy of the state are not to be effected by the courts.

It was suggested at the bar that the certificates might be deemed payable in tbe treasury notes of tbe United States, and therefore negotiable, since tbe law of congress declares sucb notes to be equivalent to gold and silver coin in payment and tender for debts. But tbe words “ current funds ” cannot be so construed. They were undoubtedly intended to include all funds bankable in this state, and any sucb funds would answer the description and satisfy the contract. A tender in any of the notes of tbe banks of this state passing as currency would have discharged tbe obligation.

Judgment reversed, and cause remanded for further proceedings according to law..