Laird v. Giffin

Cassoday, J. The judgment appealed from is to the ef-feqt that the plaintiff should have $155.95 of the moneys so deposited, on condition that the garnishee should have the balance thereof to remunerate him for the costs which the plaintiff had unnecessarily forced him to incur. The appeal is “from the judgment, . . .' and,from the whole and every part thereof.” The garnishee moves to dismiss the appeal on the ground that by accepting the money on the portion of the judgment in his favor the plaintiff thereby waived his right to appeal from the whole judgment. We are constrained to hold that this motion must be granted, for the reasons stated in Webster-Glover L. & M. Co. v. St. Croix Co. 71 Wis. 317, and cases there cited. See, also, Smith v. Coleman, 77 Wis. 348. Especially should such rule prevail where, as here, the mcineys so applied are exempt from execution (subd. 17, sec. 2982, S. & B. Ann. Stats.), and the principal defendant has waived such exemption in order to prevent further litigation, and such waiver has been incorporated into the judgment appealed from. . By the Court.— The appeal is dismissed.