Eastlund v. Armstrong

Oassoday, O. J. The proceedings in garnishment are statutory. In order to garnish the defendant corporation, it was necessary that the affidavit therefor should, among other things, state that the indebtedness from the corporation to the defendant, Armstrong, was “not by law exempt from sale on execution.” Sec. 3716, Stats. 1898. The affidavit in question does so state. From the time of the garnishment the statute made the corporation “stand liable to the plaintiff to the amount” of its indebtedness to Armstrong “then due or to become due, and not by law exempt from sale on execution.” Sec. 3719, Stats. 1898. Under the statute the affidavit for garnishment was properly “deemed a sufficient complaint in the action.” Sec. 3721, Stats. 1898. Since the affidavit constituted the complaint against the garnishee, it naturally follows that the burden of proving the essential fact of nonex-emption therein alleged was on the plaintiff, as against any claim for exemption on the part of Armstrong or the garnishee. Armstrong, as well as the garnishee, was at liberty to defend the garnishee action on the ground that such indebtedness was exempt. Sees. 3722, 3723, Stats. 1898. Had either of them done so, it would have been necessary for the municipal court to have found that such indebtedness, or some part thereof, was not exempt, or else to have discharged the garnishee. Id. But neither of them made such defense in the municipal court, nor appeared in the action in that court. Accordingly, on the return day, judgment was entered by default, not only against Armstrong, but also against [398] the garnishee. The statute provided for such default judgment against the garnishee in case it failed to áppear. See. 3728, Stats.1898. The garnishee was not required to contest the matter of exemption. Sec. 3723, Stats. 1898. And so, eight days after the rendition of the judgment, it availed itself of the privilege given by statute of paying the amount of its indebtedness to Armstrong, and costs, into court, and thereby discharging itself from all further liability. Secs. 3723b, 3730, Stats. 1898; Lewis v. C. & N. W. R. Co. 97 Wis. 372, 72 N. W. 976. The payment of such judgment by the garnishee was no waiver of the right of Armstrong to appeal therefrom to the circuit court. Chapman v. Sutton, 68 Wis. 657, 661, 32 N. W. 683; Hixon v. Oneida Co. 82 Wis. 529, 52 N. W. 445. Nor did Armstrong waive his right to such exemption by allowing such payment to be made without protest. The next day after such payment by the garnishee, Armstrong appealed to the circuit court from the judgment against the garnishee. This he clearly had the right to do. Secs. 3722, 3723, 3753, Stats. 1898. Upon such appeal being perfected, the case stood for tidal de novo in the circuit court. In that court Armstrong filed an answer, and also a counterclaim, alleging that the money so paid into the municipal court by the garnishee was exempt. The circuit court refused to strike out such answer and counterclaim, but directed that the same stand as the defendant’s pleading in the cause. While the statute does not authorize a counterclaim in such case, yet we perceive no abuse of discretion in allowing Armstrong to answer and allege that the indebtedness so garnished was for earnings exempt under the statute. Subd. 15, sec. 2982, Stats. 1898. The burden was on the plaintiff to prove what she had alleged in the affidavit of garnishment, to wit, that such indebtedness was not exempt. This she failed to do, and thereupon the circuit court ordered judgment in favor of the defendant, Armstrong, for damages, interest, and [399] costs, as mentioned. That is not in accordance "with the statute in such cases, -which expressly provides that: “If any justice’s judgment or any part thereof be collected and the judgment be afterwards reversed the appellate court shall order the amount collected to be restored with interest from the time of the collection; such order may be obtained upon proof of the facts, upon notice and motion, and may be enforced as a judgment.” Sec. 3772, Stats. 1898; Lewis v. C. & N. W. R. Co. 97 Wis. 368, 370, 72 N. W. 976. This departure from the direction of the statute is an irregularity, which we are not at liberty to sanction.- By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the garnishee proceeding and to order the amount collected to be restored to the defendant, Armstrong, with interest from the time of the collection, to be enforced as prescribed in the section of the statute last quoted, and for further proceedings according to law.