Hewitt v. Follett

Tayloe, J. As we are of the opinion that the circuit court erred in overruling the motion of the appellant for a change of the place of trial in the action, and that such error was not waived by her subsequent action on the trial, we shall not discuss any of the other questions discussed by the learned counsel upon the argument of this cause. Our reason for holding that the place of trial should have been changed on the application of the appellant, is based upon our views of the relations which she held to the other parties to this action. The learned judge refused to grant the motion for the reason that George I. Follett and James O’Neill, the garnishee, did not join in the — 271 — application. If either of these parties was a real party to the matter to be litigated between the plaintiffs and the appellant, it is probable that, within the rule laid down in Wolcott v. Wolcott, 32 Wis., 63, and Rupp v. Swineford, 40 Wis., 28, they should have joined in the application for a change of the place of trial. Under the statute under which these proceedings were held, George I. Eollett was not a party to the garnishee proceedings in any sense. The right of the plaintiffs to have the amount of the judgments upon which these executions were issued, had already been settled in those actions. The garnishee proceedings, under the law as it then stood, are not against him; no notice was required to be given to him of the commencement or prosecution of these proceedings; he was not required to appear in the action or mate any answer in the case; and the proceedings in this case show that he made no answer therein of any kind. As to him there was nothing to try, and nothing was tried, and the formal judgment rendered against him in this action was a clear mistake as to the nature of these proceedings. The plaintiffs already had judgment and execution against him for their debt, and why they should have another judgment against him in this case we are unable to understand. The only object of these proceedings was to apply the money due from the garnishee to the judgment debtor, if there was any due, to the payment of such judgments. Thi3 was not an action upon the judgments against the judgment debtor for the purpose of recovering against him a new judgment, brrt a proceeding to obtain satisfaction of the judgments already obtained against him. It is very clear to us, therefore, that, under the law as it was when these proceedings were taken, the judgment debtor was in no sense a party defendant in the garnishee action. What was the relation of the garnishee to the appellant? She had been made a party to the action for the reason that she claimed the money due from the garnishee as her own property, against the plaintiffs, who claimed that it belonged — 272 — to her husband, George I. Follett, the judgment debtor. By making the application to have her brought in as a party, the garnishee admits that he had money or other property belonging to, or that he was indebted to, the judgment debtor, or to the appellant, in some amount, and that when it is determined by the court to which of the parties it belongs, he will, if it be found due to the judgment debtor, pay it into court or deliver it up so that it may be applied to the payment of the plaintiffs’ judgments. After the claimant hostile to the claim of the plaintiffs is made a party of the action, the garnishee is in law a mere stockholder as to such property, having in law no interest in the question to be litigated between the plaintiffs and the third party claiming the same. After the appellant became a party to the action, so far as she and the plaintiffs were concerned, it became an action between them and them alone. The question which they were to litigate was the question whether she or they, as the judgment creditors of her husband, were entitled to the money due from the garnishee. In the regular order of proceedings, this issixe should have been first tried, because the determination of such issue would have ended all the rights of the appellant in the case. If the verdict had been in her favor, such judgment would have entitled her to have the action dismissed as to her, with costs, and at the same time it would have been conclusive against the plaintiffs as to the liability of the garnishee in the action against him. On the other hand, if the verdict had been against her, she would have no further connection with the case. Such verdict would have been conclusive that she did not own the property in the hands of the garnishee, and she could, therefore, have no possible interest in law in the further proceedings. It would be entirely immaterial to her whether the garnishee was indebted to the judgment debtor $1 or $1,000; and the plaintiffs and the garnishee would have settled, as between themselves, the amount due from the garnishee to the judgment debtor. The appellant and the plaint — 273 — iffs being tbe only parties to the action who have any legal interest in the determination of the question at issue between them, she is a party to the action within the meaning of section 2625, R. S. 1878, and the court should have changed the place of trial upon her application. "We do not think this case is controlled by the decision of this court in the case of Rupp v. Swineford, supra. In that case all the defendants were interested in the same issue, and, in the language of the late chief justice, the action was indivisible. In this case the issues are entirely different as to the two defendants, and neither has any interest in the determination of the issue made by the other. The determination of the issue made with the plaintiffs by the appellant, in her favor, would effectually determine the case as to both defendants, and a determination against her would make an end of the action as to her.. We think the appellant had the right to have the question of the ownership of the debt due from the garnishee decided without litigating with the plaintiffs-, or the garnishee as to the amount due from him, for the reason, as I have shown above, that she had no interest in that question, so far as it was possible to determine her rights in this action. If she proved the money was due to her, she could not recover-it of the garnishee in that action. If the garnishee had admitted a certain amount due on the contract, and had paid the amount into court, and the verdict between the plaintiffs and the appellant had been in her favor, it is probable the courtwould have directed the money so paid into court to be delivered to the appellant, if she had made application therefor;but if she had been dissatisfied with the amount paid in, she would not have been likely to receive it, but would have sought her redress in an action upon her contract. We think the court would not have been justified in changing this garnishee action to an action between the appellant and the garnishee upon the contract; and the appellant would have been compelled to commence an action against the garnishee upon the — 274 — contract, if one bad not already been commenced, in order to recover the amount due ber from him. The appellant did not waive her right to rely upon her exception to the ruling of the judge denying her motion to change the place of trial. Having the right to mate the motion, and having filed a sufficient affidavit, the court had no discretion, under the statute, except to send the action to some other court for trial. Having demanded a right which the law secured to the appellant, and that right having been refused by the court, she did not waive such right by going to trial thereafter in the court where the action was pending. Norval v. Rice, 2 Wis., 22; Wheeler v. State, 24 Wis., 52; Rines v. Boyd, 7 Wis., 155; Runals v. Brown, 11 Wis., 185. This motion, when made upon a proper affidavit, goes to the competency of the judge of the court to hear the case. The affidavit being in the law conclusive evidence of the prejudice of the sitting judge, he must remove the case, and loses all right to act further therein except to make a proper order for the removal thereof. When the proper affidavit and motion are made, the judge stands in a similar attitude to the action that a judge does who is a party interested in the matter in controversy, or who is related to or has been of counsel for either party, under section 2623, R. S. 1878. When the fact is made to appear, he loses all right to proceed further with the action; and if he does proceed, such proceedings are clearly irregular, if not void. Seehawer v. Milwaukee, 39 Wis., 409, 413; Runals v. Brown, supra; Sup'rs of Jefferson Co. v. Supervisors, 20 Wis., 139; Post v. Black, 5 Denio, 66; Place v. Butternuts W. & C. Manuf'g Co., 28 Barb., 508; Foot v. Morgan, 1 Hill, 654. I am of the opinion that the order is reviewable upon an appeal from the judgment, as an order affecting the merits of the action, under the provisions of section 3070, R. S. 1878. This court has frequently held that an order overruling a demurrer may be reviewed on appeal from the judgment after a — 275 — trial upon the merits. In The Monitor Iron Works Co. v. Ketchum, 47 Wis., 177, an order referring the case to a referee for trial was reviewed upon appeal, after a trial and judgment upon the merits, in which both parties participated without any question; and in Knips v. Stefan, 50 Wis., 286, it was expressly held that an order of reference could be reviewed on appeal from the judgment in the action. When an order of reference is made in an action in which it should not have been made, it deprives the party of the right to a trial by jury, and it is therefore held that the order involves the merits and necessarily affects the judgment. It seems to us that if the deprivation of the right to a trial by jury involves the merits and necessarily affects the judgment, the deprivation of the right to be tried by an impartial judge must also involve the merits and affect the judgment, within the meaning of the statute referred to. Although the final judgment in this action does not in direct terms adjudicate upon the right of the appellant to the money due upon the contract with the garnishee, O’jSTeill, still it does so inferentially, and she has therefore the right to have the same reversed, as it may prejudice her rights in an action by her against such garnishee. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.