Spitz v. Tripp

86 Wis. 25 | Wis. | 1893

Cassoday, J.

It seems to be conceded that April 11, 1892, J. L. Tabor was justly indebted to the garnishee, Tdpp, in thfe sum of $1,900, and that on that day he gave the chattel mortgage to secure the same as mentioned in the foregoing statement; that July 26, 1892, Tripp took possession of the property under his mortgage, and retained the same until September 10,1892, when he sold, assigned, and transferred all his interest in the mortgage, and delivered the possession of all the property, to one Edward P. Tabor; that Tripp had nothing to do with the property thereafter, except to receive from the proceeds of the sale thereof enough to satisfy his mortgage debt, and $615.09 in addition. At the time the garnishee summons was served upon Tripp, December 20, 1892, he still was in possession of the $615.09, and is liable as garnishee for that amount, unless held by some prior claim.

The statute provides that “from the time of the service of the summons upon the garnishee, he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession, or under his control, belonging to the defendant, or in which he shall be interested, to the extent of his right or interest therein, and of all debts due or to become due to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits and effects, held by a’ conveyance, or title, void as'to the creditors of the defendant, shall be embraced in such liability.” Sec. 2168, R. S. Under this statute, Tripp cannot be held liable, as garnishee, for any property, moneys, credits, or effects belonging to the principal debtor, which had passed out of his possession or control more than three months prior to the service of the garnishee summons upon him. Had Tripp been garnished by the plaintiffs at anytime between July 26, 1892, and September 10,1892, then the validity of the mortgage, and Tripp's right to hold possession of the goods, would have been involved, and might have been determined. La Crosse Nat. Bank v. Wilson, 74 Wis. 398; Edwards v. Roepke, 74 Wis. 575. But, upon the facts of this case, it is immaterial whether the mortgage was valid or invalid, or such possession lawful or unlawful, as against J. L. Tabor’s other creditors, since none of them during that time proceeded against the property or Tripp as garnishee. Tripp certainly had the legal right to sell his mortgage, and to receive payment of his debt, whether it came to him from J. L. Tabor or Edward P. Tabor. This is not an action for trespass or conversion, nor is there any question of unlawful preference involved.

, By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion, and for further proceedings according to law.