38 Wis. 139 | Wis. | 1875
At the time of the service of the garnishee process, the garnishees had in their possession a sight draft payable to the order of the judgment debtor. The draft was drawn by a bank of Milwaukee upon a bank in New York, and was the property of the judgment debtor — the garnishees having purchased it with money which they had collected for him. The draft had not yet been presented to the drawee for payment. The sole question in the case is, whether this draft was subject to the garnishee process on execution. The question is not free from difficulty, under the various provisions of our statutes; but, after due deliberation, we have reached the conclusion that it was.
The statute (ch. 249, Laws of 1862) authorizing this proceeding in substance provides, that after an execution has been issued, if the judgment creditor or some one in his behalf shall make an affidavit, stating that he verily believes that any person or corporation (naming him or it) “ has property credits or effects in bis or its bands or possession, belonging to the judgment .debtor, or that he or it is indebted to such judgment debtor,” and delivers the affidavits to the officer having the execution, the officer is then required to serve a copy of the affidavit on the person or corporation named, together with a written notice to appear and answer before a judge .or court commissioner of the county touching his’ or its liability. Sec. 1. It is further provided that from the day of such service the person or corporation so notified as garnishee shall stand liable to the judgment creditor “to the amount of the property, moneys and credits in his or its hands and possession, and
Erom these provisions of the law of 1862, it will at once be seen that the proceeding of garnishment upon an execution is authorized in a similar manner, and apparently with like scope and effect, as upon writs of attachment under ch. 130, it. S. In both cases the process of garnishment is given in nearly the same language, and seems to be dictated by the same spirit and policy. The remedy was intended to be effectual in both cases, so as to reach “ the property, credits and effects ” in the hands of the garnishee belonging to the judgment debtor, and 'apply them to the payment of his debt. To some extent the two statutes giving this remedy doubtless refer to and derive aid from each other. They are strictly in pari materia. Under the attachment law the remedy by garnishrhent is minutely and fully regulated; and were this proceeding under that chapter, there would be no doubt that the draft would be subj ect to the process. The garnishees would be required to deliver the draft to the sheriff, who might proceed and collect it, and apply the proceeds to the payment of the judgment. See secs. 12, 37, 38, 44, 57, ch. 130, Tay. Stats. The counsel for the garnishees claim that even under the attachment law it cannot be presumed the legislature intended to abrogate the common law rule, and . subject a chose in action to levy and
The learned circuit court, in the opinion filed in the cause, seemed to hold that the draft would be subject to garnishee process upon a writ- of attachment, because that statute, in clear terms, gave the sheriff power to collect it. But the court thought, under the law authorizing garnishee proceedings on execution, the sheriff could not sell the draft when delivered to him, and had no power to make it available. If this view be correct, it affords a strong reason for holding the instrument
We have already said that these statutes are in pari materia, and were doubtless intended to be harmonious and consistent in their operation. They aim at the same result, and were designed to be equally efficient. They come within the established rule of law, that all acts in pari materia are to be taken together, as if they were one law ; and they must be compared together in the construction, because they are framed on one system, having one object in view. To some extent the garnishee process on execution derives aid from the provisions of the attachment law. The garnishee is required to deliver the property in his possession belonging to the judgment debtor, to the officer having the execution, “ who shall proceed therewith according to law." This doubtless refers to the provision of the attachment law, which directs what the officer shall do with that species or kind of property where he obtains it upon a a writ of attachment. He is to proceed with it according to law; that is, he is to receive and collect it, and apply the proceeds of the draft in satisfaction of the fi. fa. This is in harmony with the rule laid down by Dwarris, who states the same as follows: “ When an action founded upon statute is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given. Indeed the latter act may be considered as incorporated with the former.” Dwarris on Statutes, marg. p. 700. These provisions in the different statutes in regard to garnishee proceedings, whether upon attachment or upon execution, seem to us to come within the application of this rule. And when the sheriff was directed by the law of 1862 to receive the property from the garnishee, and proceed therewith according to law, it must be presumed the legislature referred to some rule of the common law, or some provision of statute law, which authorized the officer to manage and dispose of that species of property. Under the attachment law he was surely authorized to proceed
It follows from these views that the judgment of the circuit court must be reversed, and the cause must be remanded with directions to render judgment against the garnishees in conformity with this decision.
By the Court. — It is so ordered.