Thomas v. Citizens National Bank of Pocomoke City

157 Wis. 635 | Wis. | 1914

SibbecKER, J.

The circuit court found that the Kellogg Bank was not indebted to the Produce Exchange nor had property in its possession belonging to the Produce Exchange when it was summoned in garnishment. This finding is assailed by the plaintiff on the ground that the transaction between the Produce Exchange and the Citizens Bank of Poco-moke did not constitute a sale and purchase of the draft. It is said in argument that the trial court came to this conclusion on the fact alone that the Citizens Bank credited the Produce Exchange in the passbook for the amount of the draft when it was issued and delivered by the Produce Exchange. The findings of the court indicate and its opinion discloses that this claim is not well founded. The court expressly considered all of the facts and circumstances that entered into the transaction between the Produce Exchange and the Citizens Bank and was thereby led to the conclusion that tbe transaction constituted a sale and transfer of the draft by the Produce Exchange to the bank. The indorsement of the draft, “Eor deposit to the credit of the Peninsula Produce Exchange,” is pretty direct and clear evidence that the Produce Exchange intended to sell and transfer the draft to the bank, and the credit given it by the bank for the amount of the draft which the bank paid in money on the checks of the Produce Exchange is well nigh conclusive in its effects of a completed sale and transfer between the parties of the draft and its proceeds. Then there is the positive testimony of the officer of the Produce Exchange.to the effect that the draft was sold to the bank, and also-the testimony of the bank’s cashier that the bank received the draft, treated it as a discount, and paid the Produce Exchange in money on checks. These facts established a completed sale and transfer of the draft unless it appeared that there was a special agreement showing that the title to the draft and proceeds thereof was not under these circumstances to pass to the bank. Appellant’s claim that these facts can all be harmonized with the custom of banks in handling drafts of this nature for collection only is not sustained, because the evidential facts adduced refute the inference that this draft was merely transferred for collection and show affirmatively that the parties to the transaction intended it as a sale and vested title thereto and the proceeds thereof in the Citizens National Bank. The fact that the bank attempted to charge the draft back to the Exchange after being notified of nonpayment when it was presented is not in itself sufficient to neutralize the conclusive character of the sale and transfer; it is rather a subsequent step by one party to the sale to compel repayment by the 'drawer of the draft in case of its dishonor. We are persuaded that the trial court properly found that the transaction of the parties constituted a sale and purchase of the draft and that the proceeds in the hands of the Kellogg Bank was ■the property of the Citizens Bank. Aebi v. Bank of Evansville, 124 Wis. 73, 102 N. W. 329; American Thresherman v. Citizens Bank, 154 Wis. 366, 141 N. W. 210; Ditch v. Western Nat. Bank, 79 Md. 192, 29 Atl. 72, 138.

The Citizens National Banlc intervened and at the timé that the summons was served was indebted to the Produce Exchange in the sum of $151 on an open running banking account. The bank and Produce Exchange are nonresidents of Wisconsin and the situs of the debt against the bank would be Pocomoke City, Maryland. The impounding of property or money by garnishment must be accomplished by the process when the suit is instituted under the conditions provided by the statutes governing and regulating garnishment proceedings. We cannot perceive how the proceeding can reach property or a debt' in the state of Maryland. The Citizens Banlc appeared in the action to assert its rights to the property in this state which had been impounded by the garnishment proceeding. An appearance of a nonresident in the courts of this state cannot operate to give the court jurisdiction to impound property that cannot otherwise be reached because it is situated outside of the state and therefore not. subject to garnishment by the courts of this state. Kuehn v. Nero, 145 Wis. 256, 130 N. W. 56.

The contention that the court committed prejudicial error-in denying the plaintiff’s request to have the action tried by a jury cannot prevail. Assuming, without deciding, that a right to a jury trial exists, it did not operate prejudicially in this case, because the rights of the parties rest on undisputed evidence and were a matter for determination upon the record by the court. The court properly ordered the plaintiff to restore to the bank the amount the justice’s court had improperly turned over to him. The justice’s court judgment of necessity was wholly reversed, and the plaintiff had no right to any moneys received under it.

By the Court.- — The judgment and order appealed from, are affirmed.