Blabon v. Gilchrist

The following opinion was filed September 21,1886: Tayloe, J. The proceedings instituted by the plaintiffs in this case are proceedings wholly unknown in the common law. They are purely statutory, and the commissioner is limited to the powers conferred by the statute. Sec. 3030, K. S., only authorizes the commissioner to make [43] an order requiring the judgment debtor to appear "before him and answer, etc. There is no powmr given him to require, by order, any other person so to appear before him to answer concerning property in his hands belonging to the defendant; and, clearly, there is no power to make an order, before a hearing upon the order requiring the defendant to appear and be examined, restraining any person except the defendant from disposing or transferring property in his hands belonging to the defendant. It is clear, therefore, that the ruling of the commissioner discharging the order as to Hugh G. Gilchrist was properly made; and it was not error on the part of the circuit court to refuse to reverse such order. Did the court err in holding that Hugh G. Gilchrist was not a competent witness in the proceeding either for or against the defendant, his wife ? The learned counsel for the' appellants insists that this question must be answered in the affirmative, upon the authority of the case of In re O’Brien, 24 Wis. 547. In that case it was held that, under the law as it then stood, in supplementary proceedings the wife might be compelled to answer as to property she had in her hands belonging to her husband, when the proceeding was upon a judgment against the husband alone; and, if the wife may be examined against the husband, it follows logically that the husband may be examined in a case against the wife. Under the law as it then stood, the court or commissioner had the power to order not only the judgment debtor to appear and be examined, but also any other person who it was claimed had property in his hands belonging to the judgment debtor. Sec. 91. ch. 134, E. S. 1858, as amended by ch. 44, Laws of- 1860; 2 Tay. Stats. 1566. This court held that under sec. 91, ch. 134, E. S. 1858, as amended, the wife could be made a party to the supplementary proceedings against the husband; and that, as the law upon the subject of such proceedings as first en [44] acted by the Code in 1856 and re-enacted as the law in the Eevision of 1858 was intended as a substitute, for a creditors’ bill, it was held that, in analogy to the rule in the proceeding by creditors’ bill, the husband and wife might be joined when it was alleged that she was holding the property of the husband with intent to cover it from his creditors; and, as in such creditors’ bill she might be compelled to make a separate and special answer, so she might be compelled to answer in such supplemental proceedings. But sec. 91 of ch. 134 was repealed in 1878, and sec. 3030 substituted, restricting the right to proceed against the judgment debtor only, and providing that, as against other parties having possession of the property of the judgment debtor, they should be proceeded against by garnishment under secs. 2752 and 2753, E. S. 1878. In addition, sec. 3029, E. S. 1878, expressly provides for an action in the nature of a creditors’ bill at common law, in which it is also provided that in such action against the judgment debtor any other person may be joined as defendant to compel the discovery of any property or thing in action belonging to such judgment debtor, etc. These several provisions clearly indicate an intention on the part of the legislature to limit the proceedings undey sec. 3030 to the defendant in the action. The provisions of sec. 3035, which authorizes the court or judge to order any property of the judgment debtor in the hands of himself or any other person to be applied towards the satisfaction of the judgment, does not conflict with such intent, as it is clear from reading the whole section that such power can only be exercised in those proceedings when there is no dispute about the ownership of the property or as to the amount of the debt due to the judgment debtor by such third person. The proceeding, so far as it is an adversary proceeding, is solely against the judgment debtor, and no issue can be tried by the commissioner between a third per [45] son and the plaintiffs in the judgment as to the fact whether such third person has property in his hands belonging to the defendant. The husband is therefore not & competent witness in such proceeding against his wife, any more than he would be in any other action against her. Birdsall v. Dunn, 16 Wis. 235; Hobby v. Wis. Bank, 17 Wis. 167; Meek v. Pierce, 19 Wis. 300; Farrell v. Ledwell, 21 Wis. 182; Butts v. Newton, 29 Wis. 632, 640; Mountain v. Fisher, 22 Wis. 93; Ainsworth v. Barry, 35 Wis. 136; Hale v. Danforth, 40 Wis. 382; Stewart v. Stewart, 41 Wis. 624; Carney v. Gleissner, 58 Wis. 674. It is true, the plaintiffs had the right to examine the husband as to any matters he had transacted as agent for his wife, and perhaps might have been allowed to show that fye had, as her agent, her property in his possession. If such had been their object in offering the husband as a witness, they should have so stated at the time the offer was made; but, as the offer was to examine him generally as a witness in the case, the commissioner did not err in refusing to have him sworn. See Menk v. Steinfort, 39 Wis. 370, 375; Mountain v. Fisher, 22 Wis. 93. In the view of the statute we have taken, it is clear the commissioner was right in refusing to make an order directing the husband, Hugh G., to pay over $300, which it is alleged he had in his hands belonging to his wife. If there was in fact any money in his hands belonging to his wife, the proper proceeding would have been to have asked the commissioner to appoint a receiver in the case, and to have directed such receiver to commence an action against the husband to recover the money in his .hands for the benefit of the plaintiffs, or the plaintiffs might have garnished the husband or made him a defendant in a creditors’ bill. There was no error in awarding costs to the defendant. Sec. 3038 expressly authorizes the commissioner to allow to [46] the party examined witness fees and disbursements, and a fixed sum in addition, not exceeding $25, as costs. We find no error in the record. By the Court.— The order and judgment of the circuit' court is affirmed. A motion for a rehearing was denied November 3, 1886.