Stadler v. Smith

Winslow, J. If the garnishee was liable at all, it was because he had some of Smith’s money in his hands or was indebted to Smith. R. S. 1878, sec. 2768. When the plaintiff had shown that there was money in the garnishee’s hands which Smith had placed there, and which the garnishee did not himself claim to own, he rested his case, and strenuously objected to any proof tending to show that the money, though deposited by Smith, in fact belonged to Milroy, because he says the garnishee cannot prove an illegal transaction as a foundation for a defense. The objection was properly overruled. The plaintiff stood in no better position than Smith. If Smith could not recover against Grout, then the plaintiff cannot recover. Smith could not recover of Grout the money which was bet by Sennott, because the statute prohibits such a recovery; he could not recover the money deposited by himself, because it belonged to Milroy, and this fact may always be shown. Harnden v. Melby, 90 Wis. 5. The plaintiff’s objection to the evidence is based on, a misconception. Neither Smith nor Grout is trying to make title to the money by means of an illegal transaction; but the nature of the transaction is shown, not to enforce it or use it to found title upon, but, [301] in effect, to set it aside and show to whom the money by law belongs. No rule of evidence prohibits this. The first two questions submitted are answered in the affirmative; and, as these answers dispose of the case, the third question is left unanswered. By the Oourt. — It is so ordered, and the judgment is affirmed. Bardeen, J., took no part.