Badger Lumber Co. v. Stern

101 N.W. 1093, 123 Wis. 618, 1905 Wisc. LEXIS 10

• Court: Wisconsin Supreme Court
• Decided: January 10, 1905
• Status: Published

Opinion

Oassodat, C. J.

It was competent'for the principal defendant, Richard, to appeal from the judgment against the garnishee. Sec. 2765, Stats. 1898; Veitch v. Cebell, 105 Wis. 261, 81 N. W. 411; Schomberg H. L. Co. v. Engel, 114 , 90 N. W. 177. Whatever may be the rule in other juiisdictions, it is well settled in this statQ that a debt due jointly to tire principal defendant and another or others cannot be reached by garnishment in an action against such defendant alone. Singer v. Townsend, 53 Wis. 226, 10 N. W. 365. This is in harmony with the great weight of authority. We cite a few cases only: Trickett v. Moore, 34 Kan. 755, 759, 10 Pac. 147, and cases there cited; Hawes v. Waltham, 18 Pick. 451; Stillings v. Young, 161 Mass. 287, 37 N. E. 175; Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 641; Hanson v. Davis, 19 N. H. 133. The reason for the rule is that such principal “defendant could not alone have maintained a suit therefor against the garnishee.” 14 Am. & Eng. Ency. of Law (2d ed.) 798, and cases there cited. With the extended rights given to married women by our statutes, we perceive no reason why the same rule should not apply to an indebtedness owing by the garnishee to husband and wife. Secs. 2341-2345, Stats. 1898; Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65; Barker v. Lynch, 75 Wis. 624, 44 N. W. 826; Gallagher v. Mjelde, 98 Wis. 513, 74 N. W. 340, and cases there cited; Kendall v. Beaudry, 107 Wis. 180, 83 N. W. 314. True, the answer of the garnishee states, as a conclusion, that he “was and is now indebted to the defendant Rich-■Iard Stem;” but that is immediately followed by stating the fact that “such indebtedness” was upon the written contract mentioned, wherein and whereby he “agreed to pay said Richard Stern and Anna Stern the sum of $300,” etc. Such statement of fact supersedes such general conclusion.

By the Court. — The judgment of the circuit court against the garnishee is reversed, and the cause is remanded with directions to dismiss the garnishee action.

A motion by the respondent to set off judgment for costs in this court against judgment in circuit court was argued by F. C. Weed for the appellant, February 21, 1905. The motion was denied March 14, 1905.