Schrader v. Gundeck

Rosenberry, J. The trial court sustained the demurrer to the counterclaim upon the ground that the matters therein set out are not pleadable as a counterclaim. Sec. 2765, Stats., provides: “The defendant may, in all cases, by answer duly verified, to be served within twenty days from the service of the garnishee summons on him, defend the proceedings against any garnishee upon the ground that the indebtedness of the garnishee or any property held by him is exempt from execution against such defendant or for any other reason is not liable to garnishment; or upon any ground upon which a garnishee might defend the same.” The question arises, Can a garnishee defend upon the ground that the judgment in the main action is unjust or inequitable as to the principal defendant? Unless a garnishee may make such a defense the defendant may not do' so, because by the wording of the statute he is precluded therefrom. The statute specifies the grounds upon which the defendant may defend the garnishment proceedings. He may defend only upon the specified grounds,' other defenses, if such there be, being under familiar rules excluded. While it is true that the relief prayed for is a judgment in per-sonam, the basis of the judgment so prayed for, if rendered, would be the invalidity of the judgment in the main action, assuming that the counterclaim states a cause of action for equitable relief, and waiving the question of whether or not the matters set out in the counterclaim are res adjudicata (Ketchum v. Breed, 54 Wis. 131, 11 N. W. 238), we are of the opinion that they cannot be pleaded as a defense in the garnishment proceedings. For the reason that a garnishee will not be protected in the payment of a judgment which is void for want of jurisdiction, he' may inquire into the regularity of the proceedings in the principal action, and set up as a defense that the judgment in the main action is void for want of jurisdiction, but where the court has obtained jurisdiction .mere irregularities are not available. [429] Judgment in the garnishment proceedings presupposes a valid judgment against the defendant in the main action. Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596; Frisk v. Reigelman, 75 Wis. 499, 43 N. W. 1117, 44 N. W. 766; 20 Cyc. 1074. The matters set out in the counterclaim show that the court had jurisdiction to render the judgment in the main action, and furthermore that the same facts were presented to and passed upon by the court, and the defendant, as well as the garnishee, is in no position to relitigate in a garnishee action the matters set out in the counterclaim. The trial court was right in holding that the facts so alleged were not pleadable in the garnishment proceedings. If the matters alleged in the counterclaim are true, and the defendant Gundeck is compelled to pay the judgment, it may be that an injustice will be done him. It has been suggested that the cause should be remanded in some manner that would permit a trial upon the merits, but in the present situation of the case that is impossible. The issue presented is not triable in any court in a garnishment proceeding. By the Court. — Order affirmed.