Bond v. Neuschwander

Wisconsin Supreme Court

Bond v. Neuschwander

57 N.W. 54, 86 Wis. 391, 1893 Wisc. LEXIS 203

CourtWisconsin Supreme Court

DecidedNovember 28, 1893

StatusPublished

Cited by4 cases

This text of 57 N.W. 54 (Bond v. Neuschwander) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bond v. Neuschwander, 57 N.W. 54, 86 Wis. 391, 1893 Wisc. LEXIS 203 (Wis. 1893).

Pincite

Opinion

Winslow, J.

The court was entirely right in opening the default and allowing the garnishee defendant to answer. Such a course was the only proper one when it appeared, as it did without dispute, that the garnishee was insane when the summons was served upon her. R. S. sec. 2832;¹ Gerster v. Hilbert, 38 Wis. 609. The verified petition con[393]*393tained an affidavit of merits as well as a sworn denial of all liability, sabstantially sufficient as an answer under.sec. 2759, R. S., so all the technical requirements necessary to authorize the court to open the default were complied with.

It. is true that the court went further than would be justified in an ordinary case of opening a judgment and allowing a defense to be made. Ordinarily, the default should be set aside and the judgment should be allowed to stand as security to the adverse party, pending the determination of the issue; but in this case, it appearing that the property claimed to be in the hands of the garnishee is real estate, and she being insane, so that a transfer thereof could only be made by authority of court, it does not appear that the plaintiff is prejudiced by the absolute vacating of the judgment.

No other points require notice.

By the Court.— Orders affirmed.

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Winslow, J.

The court was entirely right in opening the default and allowing the garnishee defendant to answer. Such a course was the only proper one when it appeared, as it did without dispute, that the garnishee was insane when the summons was served upon her. R. S. sec. 2832;¹ Gerster v. Hilbert, 38 Wis. 609. The verified petition con[393]*393tained an affidavit of merits as well as a sworn denial of all liability, sabstantially sufficient as an answer under.sec. 2759, R. S., so all the technical requirements necessary to authorize the court to open the default were complied with.

It. is true that the court went further than would be justified in an ordinary case of opening a judgment and allowing a defense to be made. Ordinarily, the default should be set aside and the judgment should be allowed to stand as security to the adverse party, pending the determination of the issue; but in this case, it appearing that the property claimed to be in the hands of the garnishee is real estate, and she being insane, so that a transfer thereof could only be made by authority of court, it does not appear that the plaintiff is prejudiced by the absolute vacating of the judgment.

No other points require notice.

By the Court.— Orders affirmed.

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Bluebook (online)

57 N.W. 54, 86 Wis. 391, 1893 Wisc. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bond-v-neuschwander-wis-1893.

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