Merrell v. Campbell

5 N.W. 912, 49 Wis. 535, 1880 Wisc. LEXIS 72

• Court: Wisconsin Supreme Court
• Decided: May 27, 1880
• Status: Published

Opinion

Lyost, J.

Until the county orders in question were delivered to Castle, he had no property in them. Before such delivery, it was competent for the board of supervisors to reconsider their action in allowing Castle’s accounts, and to direct the orders to be cancelled. Had the board done so, the remedy of Castle would have been upon his original claims against the county, not upon the orders which had never been delivered to him. In this respect the case is the same as though A., being indebted to B., agrees to give the latter his note for the amount of the debt, and actually makes out and’signs a note therefor, but does not deliver it to B. While the note remains undelivered, B. cannot maintain an action upon it. His remedy is upon the original debt. In the case supposed, a garnishee proceeding against A. at the suit of a creditor of B. might reach the original indebtedness, but most certainly it would not reach the undelivered note. So in this case the garnishee proceeding against the county clerk (were there no other impediment) cannot reach the undelivered county orders.

But there is another and an insurmountable impediment to a recovery against the garnishee. The county clerk is the mere agent or instrument of the board of supervisors; his custody of the orders in question was the custody of the county; and, although this garnishee proceeding is in form against the county clerk, in substance and legal effect it is against the county. It has been the settled law of this state for nearly twenty years, that a municipal corporation is not subject to garnishment; and it is too late to change the rule by judicial determination. Burnham v. Fond du Lac, 15 Wis., 193; Buffham v. Racine, 26 Wis., 449. The principle of the rule was also asserted in Hill v. La Crosse & Mil. Railroad Co., 14 Wis., 291.

We think that proper exceptions were taken to present the questions here determined; and also that the delivery of the orders by the clerk to the sheriff has no significance. Such delivery cannot operate to bind the county, whose instrument the clerk is, or to subject it to garnishment.

By the Gourt.- — ’The judgment of the circuit court is reversed, and the cause remanded with directions to that court to dismiss the garnishee proceedings.