John R. Davis Lumber Co. v. First National Bank of Milwaukee

Winslow, J. The garnishee by its answer set up substantially that the check in its possession was the property of the Ashland National Bank by purchase through an intermediate purchaser from Dockery. Upon- the trial the garnishee was allowed to prove that Dockery had assigned the claim represented by the check to one Mrs. O’Brien before the garnishment. Seasonable objection was taken to the introduction of this evidence because no such defense was set up in the answer, and the question presented is whether this evidence was admissible under the pleadings. Our statutes seem certainly to contemplate that the garnishee shall set forth in his answer any claim which third persons to his knowledge may have upon the property in his hands (S. & B. Ann. Stats, secs. 3721-37235; Id. sec. 2760, subd. 5); the policy being, apparently, to bring all the conflicting claims,-as well as the parties making such claims, before the court, in order that all questions as to the ownership of the specific property in question may be settled in one proceeding. In harmony with this evident purpose of the statutes, it has been held by this court that it is the duty of the garnishee in his answer to make full and fair disclosures of all facts and circumstances concerning the property in his hands. Lusk v. Galloway, 52 Wis. 164. [3] It is obvious that were a garnishee allowed by answer to set up a transfer of the property to one person, and upon the trial prove a transfer to an entirely different person, the plaintiff might be totally unprepared to meet the claim so made. He might thus be defeated through surprise, though, had he been seasonably informed of the claim, he might perhaps have successfully met it upon the trial. Eairness and good faith require that, when the garnishee knows of an assignment or transfer of the property in his hands, he should disclose the fact in his answer; and such seems to be the current of the authorities. Coleman v. Scott, 27 Neb. 77, and cases cited. It has been held by this court that the defense of prior garnishment must be pleaded in order to admit such fact in evidence, and the principle is the same. Schuerman v. Foster, 82 Wis. 319. If it was the garnishee’s duty to plead the transfer, he was certainly not entitled to give evidence of it without pleading. It was said that the bank did not know of the transfer to Mrs. O’Brien at the time the answer was made, and so should be excused from pleading it. The record shows that a deposition was taken by the garnishee while the action was pending in the justice’s court, which disclosed the alleged assignment to Mrs. O’Brien. The garnishee had ample time, therefore, to apply for leave to amend its answer before going to trial, and should have done so. 2 Wade, Attach. § 371. Other errors are alleged, but we shall not discuss them. Eor error in the admission of the evidence of the transfer to Mrs. O’Brien there must be a new trial. . By the Court.— Judgment reversed, and cause remanded for a new trial.