Dowling v. Lancashire Insurance

Wisconsin Supreme Court

Dowling v. Lancashire Insurance

61 N.W. 76, 89 Wis. 96, 1894 Wisc. LEXIS 235

CourtWisconsin Supreme Court

DecidedDecember 11, 1894

StatusPublished

Cited by8 cases

This text of 61 N.W. 76 (Dowling v. Lancashire Insurance) 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

Dowling v. Lancashire Insurance, 61 N.W. 76, 89 Wis. 96, 1894 Wisc. LEXIS 235 (Wis. 1894).

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Opinion

WiNsuow, J.

It has been repeatedly held by this court that a debt, in order to be subject to garnishment, must be owing absolutely at the time of the service of process, although it may be payable subsequently. Edwards v. Roepke, 14 Wis. 575, and cases there cited. Where the question whether there will be any indebtedness or not depends entirely upon future contingencies, the garnishee cannot be held. Vollmer v. C. & N. W. R. Co. 86 Wis. 305. In this case it is clear that there was no absolute liability on the part of the insurance companies at the time of the service of process. A liability might arise in the future after proofs of loss had been served and the time had elapsed within which the option to replace the goods might be exercised, but these were contingencies which might never happen. The authorities, generally, though not universally, sustain this view. Drake, Attachm. § 553; Godfrey v. Macomber, 128 Mass. 188; Thorp v. Preston, 42 Mich. 511; Hurst, Purnell & Co. v. Home P. F. Ins. Co. 81 Ala. 174; Gies v. Bechtner, 12 Minn. 279; Lovejoy v. Hartford F. Ins. Co. 11 Fed. Rep. 63.

By the Court.— Judgment reversed, and action remanded for a new trial.

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WiNsuow, J.

It has been repeatedly held by this court that a debt, in order to be subject to garnishment, must be owing absolutely at the time of the service of process, although it may be payable subsequently. Edwards v. Roepke, 14 Wis. 575, and cases there cited. Where the question whether there will be any indebtedness or not depends entirely upon future contingencies, the garnishee cannot be held. Vollmer v. C. & N. W. R. Co. 86 Wis. 305. In this case it is clear that there was no absolute liability on the part of the insurance companies at the time of the service of process. A liability might arise in the future after proofs of loss had been served and the time had elapsed within which the option to replace the goods might be exercised, but these were contingencies which might never happen. The authorities, generally, though not universally, sustain this view. Drake, Attachm. § 553; Godfrey v. Macomber, 128 Mass. 188; Thorp v. Preston, 42 Mich. 511; Hurst, Purnell & Co. v. Home P. F. Ins. Co. 81 Ala. 174; Gies v. Bechtner, 12 Minn. 279; Lovejoy v. Hartford F. Ins. Co. 11 Fed. Rep. 63.

By the Court.— Judgment reversed, and action remanded for a new trial.

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Bluebook (online)

61 N.W. 76, 89 Wis. 96, 1894 Wisc. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowling-v-lancashire-insurance-wis-1894.

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