Winterfield v. Milwaukee & St. Paul Railway Co., 29 Wis. 589

Winterfield v. Milwaukee & St. Paul Railway Co.

29 Wis. 589 | Wis. | 1872

LyqN, J.

This appeal presents but a single question, which is, whether a person who has been summoned as a garnishee, may answer that the property of the debtor in his hands, or his indebtedness to such debtor, is exempt by law from seizure on attachment or execution; and, by proving that it is so exempt, defeat the garnishee suit.

We are clearly of the opinion that the garnishee may interpose such defense. The statute makes the affidavit the complaint in the garnishee action, and requires that, among other things, it shall state “that the property, money, credits, effects or indebtedness mentioned therein are, to the knowledge or belief of the person making such affidavit, not by law exempt from seizure or sale on attachment or execution.” It would be very remarkable if the legislature intended, when it enacted that such affidavit should be the complaint in the action, that the garnishee should not be permitted to answer one of its most material averments of fact. Were it intended to create-such an anomaly in practice, the law would have expressly so provided.

Besides, it is not at all certain, had the railway company neg*592lected to interpose sucb defense, that Patterson could not have compelled it to pay the debt to him, notwithstanding the garnishee judgment. Knowing that the indebtedness was exempt, it was not only the right of the company, but very probably it was its duty, for self protection, to interpose the defense. And this the more especially after Patterson had formally requested it to do so.

The following authorities are to the same effect. • Some, but not all of them, are founded upon statutes requiring the garnishee to interpose the defense, if the property sought to. be reached by the process, is exempt., But it is believed that such statutes are merely declaratory of the law as. it existed before they were enacted. Gery v. Ehrgood, 81 Pa. St., 329; Staniels v. Raymond, 4 Cush., 314; Davenport v. Swan, 9 Humph., 186; Lock v. Johnson, 36 Maine, 464; Clark v. Averill, 31, Vt., 512; Drake on Attachment, § 479.

The judgment of the county court must be reversed, and a venire Re novo awarded.

By the Court. — So ordered.