Thoen v. Harnstrom

98 Wis. 231 | Wis. | 1898

Lead Opinion

Mabshall, J.

• Sec. 2'771, S. & B. Ann. Stats., provides that “ the defendant may, at any time after the commencement of the action and before judgment, file with the clerk of the court an undertaking, executed by at least two sureties, . . . to . . . pay to the plaintiff the amount of the judgment, with all costs that may be recovered against such defendant in the action, not exceeding a sum specified” in such undertaking; and that, on compliance with the statutory requisites in the matter, the garnishee shall be discharged and the garnishee proceedings deemed discontinued. So, upon the service of the garnishee summons upon the garnishee defendant, the appellant had his election to give the bond provided for by statute and thereby supersede the garnishee proceedings, or to move the court for a dismissal of such proceedings, under the rule in Orton v. Noonan, 27 Wis. 572, and German American Bank v. Butler-Mueller Co. 87 Wis. 467, if he deemed the facts sufficient to invoke the application of such rule. The two remedies were inconsistent; therefore, obviously, the appellant could not have both. He made his election to 'give the undertaking, and thereby the garnishee proceedings were, by force of the statute, discontinued and at an end. It is not perceived how the remedy for the dismissal of the proceedings could be resorted to under such circumstances in any event, but certainly not till the appellant had been relieved on some ground of equity from the election he had made to supersede the garnishee proceedings in the manner provided by statute. Eau Claire Grocer Co. v. Hubbard, 97 Wis. 661. No ground for such relief was set forth in the moving papers.

The mere fact that the appellant did not know that the cause of action sued on did not arise in the state of Wisconsin was immaterial, because the plaintiff had the absolute right to resort to the Wisconsin courts to enforce his claim if he saw fit to do so. Eingartner v. Illinois Steel Co. 94 Wis. 70. Rut if it were otherwise, no excuse is shown for the want of knowledge which appellant alleged. A party cannot, except at his peril of being bound by his action, proceed ignorantly in matters respecting his own interests, when such ignorance is the result of a failure to resort to reasonable means of knowledge -within his reach, unless there is some good excuse shown for such conduct. No excuse whatever is shown here. The appellant simply alleged that he did not know. It is perfectly apparent that he might have known had he made reasonable efforts to discover the facts. Being a debtor, the presumption from that fact is that he knew the facts out of which the debt ai-ose, and it would take a strong case to rebut such presumption. But, as stated, there was no reason set forth in the moving papers sufficient to warrant the court either in relieving the ■defendant from his election to supersede the garnishee proceedings by giving an undertaking under the statute, or for dismissing the garnishee proceedings if such relief had been granted.

By the Oourt. — The order appealed from is affirmed.

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Concurrence Opinion

Cassoday, O. J.

(concurring). As I understand, the principle upon which I differed from the majority of the court in Eingartner v. Illinois Steel Co. 94 Wis. 70, is not involved in this appeal. On the contrary, the right to maintain an action “ for and against property and rights of property located or having a situs ” in this state is there conceded in my opinion. 94 Wis. 83, 84. That opinion has recently been expressly sanctioned by the supreme court of Mississippi, as stating “ the true ground for the conclusion reached by the court in Eingartner's Gase" Pullman Palace Car Co. v. Lawrence, 74 Miss. 782.