M. Schulz Co. v. Gether

198 N.W. 437, 183 Wis. 501, 1924 Wisc. LEXIS 196

Opinion

Crownhart, J.

Issues are raised here not raised below. It is claimed that the judgment appealed from is not a judgment in fact but only an order for judgment. That question was not raised before the trial court. The position is inconsistent with the motion to stay execution and the appeal from the judgment. The judgment is somewhat irregular in form, but we deem it sufficient. There was no motion to vacate the judgment and there is no bill of exceptions. The judgment is fair on the record and is sustained on this appeal. Therefore the stay of execution was within the discretion of the trial court and cannot be disturbed.

If properly before us, an important question for construction of the statutes would be involved, which should be cured by legislation. Sec. 2766, Stats., provides that the garnishee action shall be dismissed where the defendant has judgment in the main action. Query. Does this mean final judgment, and, if so, what practice should prevail pending appeal ?

By the Court. — The judgment and order of the circuit court are affirmed. .