O'Neil v. Russell

223 N.W. 83, 198 Wis. 11, 1929 Wisc. LEXIS 48

Opinion

Stevens, J.

The defendant Russell testified that he had carried his checking account in the name of his wife upon the advice of the cashier of the garnishee bank. This is not denied by the cashier. It therefore appears that this cashier knew that the defendant Russell was carrying his checking account in the name of Elizabeth Russell at the time that the cashier, acting on behalf of the bank, denied liability in the garnishee action. It follows that the bank has retained and used the money knowing it was subject to garnishment. If, as contended by the bank, counsel for both parties had agreed that the fund might be retained by the bank until the court determined to whom it belonged, that would not relieve the bank from liability to pay interest on the fund which it had retained and used during the progress of this litigation, knowing that it belonged to defendant Russell.

Under the rule of Eau Claire Nat. Bank v. Chippewa Valley Bank, 124 Wis. 520, 528, 102 N. W. 1068, the bank was liable for interest on the fund garnisheed from the date of the service of garnishee process upon it. It follows that the court erroneously struck out the provision requiring the bank to pay interest; that this order must be reversed, and that the provision requiring the bank to pay interest must be reinstated in the judgment.

By the Court. — So ordered.