Family Finance Corp. of Bay View v. Sniadach

Citation37 Wis.2d 163,154 N.W.2d 259
PartiesFAMILY FINANCE CORP. OF BAY VIEW, Respondent, v. Christine SNIADACH, alias, Appellant, Miller Harris Instrument Co., Garnishee-Defendant.
Decision Date08 December 1967
CourtUnited States State Supreme Court of Wisconsin

Barbee & Jacobson, Lloyd A. Barbee and Thomas M. Jacobson, Milwaukee, Jack Greenberg, LeRoy D. Clark and Gabriella Kirk, New York City, for appellant.

Sheldon D. Frank, Milwaukee, Sidney Gray, Milwaukee, of counsel, for respondent.

Harry F. Peck, Jr., Milwaukee, amicus curiae, for Milwaukee Chap. Wis. Liberties Union.

Goldberg, Previant & Uelmen, Milwaukee, amicus curiae for Wis. State AFL-CIO.

CURRIE, Chief Justice.

Appellant attacks the constitutionality of Wisconsin's garnishment before judgment statutes, secs. 267.02(1)(a) 1, 267.05(1), 267.07(1), 267.16(1), 267.18(2), and 267.21, Stats., on a number of grounds based on injustices and deprivations which have been, or are likely to be, suffered by others, but which she has not personally experienced.

One such ground is that poor wage earners may have their wages garnished in a situation where there is no merit to the claim for which the principal action has been instituted. As a result such wage earners either are forced to settle with the plaintiff by assigning future wages, or are deprived of their wages for a long period of time until the principal action can be tried and probable cause determined. Here, appellant's indebtedness is on a note, and her affidavit in support of the order to show cause contains no allegation that she is not indebted thereon to plaintiff.

Another alleged ground of unconstitutionality is that sec. 267.18(2)(a), Stats., 1 makes no accommodation for defendants with more than one dependent. However, appellant received the benefit of the maximum subsistence allowance of one half of the amount of her garnished wages, and her affidavit does not allege how many dependents, if any, she has.

Another alleged ground of unconstitutionality is that sec. 267.21, Stats., which permits a defendant to post a bond and secure the release of his garnished property, denies equal protection of the laws to persons of low income. Appellant has made no showing that she is a person of low income and unable to post a bond.

A further alleged ground of unconstitutionality is that the garnishment before judgment statutes threaten the gainful employment of many wage earners. It is claimed that many employers discharge garnished employees for being unreliable. Appellant, however, has made no showing that her own employer reacted in this manner.

Still a further ground of attack is the provision in sec. 267.07(1), Stats., which affords ten days' time to plaintiff to serve the garnishee summons and complaint on defendant after service of same on the garnishee. Here, appellant was served on the same day as the garnishee.

It is a long-accepted rule that a party may not urge the unconstitutionality of a statute upon a point not affecting his or her rights. 2 In State ex rel. Kellogg v. Currens 3 the challenging party presented 11 grounds of attack upon the constitutionality of a statute. The court discussed the one which affected the challenger but refused to discuss the other ten, stating:

'* * * Statutes are not to be declared unconstitutional at the suit of one who is not a sufferer from their unconstitutional provisions. * * * We cannot set aside the acts of the legislature at the suit of one who, suffering no wrong himself, merely assumes to champion the wrongs of others. * * *' 4

Accordingly we will confine our consideration of appellant's grounds of attack upon the garnishment before judgment statutes to those directly affecting her. The grounds of attack which will thus be considered are:

(1) These statutes deprive appellant of her property without due process of law.

(2) Appellant is denied due process of law, because the statutes afford her no right to an immediate hearing to challenge the validity of the garnishment.

(3) The legislature has assumed judicial powers in violation of art. VII, sec. 2, Wis.Const.

(4) The garnishment before judgment statutes deny appellant equal protection of the laws because they subject wage earners to harsher summary process than other classes of debtors.

Deprivation of Property Without Due Process

The garnishment before judgment proceedings do not involve any final determination of the title to a defendant's property, but merely preserve the status quo thereof pending determination of the principal action. The defendant receives notice and a hearing before being permanently deprived of his or her property.

In McInnes v. McKay 5 it was contended that Maine's statute, which permitted attachment, without affidavit or bond, in advance of judgment, deprived the defendant of due process of law contrary to the fourteenth amendment of the United States Constitution. The relevant statute provided:

'All civil actions, except scire facias and other special writs shall be commenced by original writs; which, in the Supreme Judicial Court, may be issued by the clerk in term time or vacation and framed to attach the goods and estate of the defendant, and for want thereof to take the body, or as an original summons, without an order to attach goods and estate.' 6

The court held that this was '* * * not a deprivation without 'due process of law' for it is part of a process, which during its proceeding gives notice and opportunity for hearing and judgment of some judicial or other authorized bunal.' 7

It noted that the attachment merely created a temporary lien, which did not destroy the defendant's title. The court also cited the United States Supreme Court's statement in Rothschild v. Knight 8 that to what actions the remedy of attachment may be given is for the legislature of a state to determine and its courts to decide.

McInnes v. McKay was affirmed by the United States Supreme Court in a per curiam decision 9 on the authority of Ownbey v. Morgan 10 and Coffin Brothers & Co. v. Bennett. 11

Ownbey v. Morgan upheld the constitutionality of Delaware's foreign attachment law as not being a denial of due process even though it harshly provided that before the defendant could appear and defend he had to give security in the amount of the value of the property attached. The court in its opinion declared:

'The due process clause does not impose upon the states a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall. It restrains state action, whether legislative, executive, or judicial, within bounds that are consistent with the fundamentals of individual liberty and private property, including the right to be heard where liberty or property is at stake in judicial proceedings. * * *' 12

Coffin Brothers & Co. v. Bennett involved a Georgia statute which authorized the superintendent of banks to issue an execution against the property of a stockholder of a defunct bank upon whom a stock assessment had been levied. Mr. Justice Holmes wrote the unanimous opinion for the court and stated:

'The objection urged by the plaintiffs in error seems to be that this section purports to authorize an execution and the creation of a lien at the beginning, before and without any judicial proceeding. But the stockholders are allowed to raise and try every possible defense by an affidavit of illegality which, as said by the Supreme Court of Georgia, makes the so called execution 'a mode only of commencing against them suits to enforce their statutory liability to depositors.' A reasonable opportunity to be heard and to present the defence is given and if a defence is presented the execution is the result of a trial in court. The Fourteenth Amendment is not concerned with the form. Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 42, 46 S.Ct. 384, 70 L.Ed. 818. The fact that the execution is issued in the first instance by an agent of the State but not from a court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection. * * *' 13 While neither Ownbey v. Morgan nor Coffin Brothers & Co. v. Bennett involved garnishment before judgment statutes, their rationale, when cited by the United States Supreme Court as authority for affirming McInnes v. McKay becomes clear. It is that the creditor's remedies involved, though harsh, did not deprive a man of his property without notice and an opportunity to be heard.

The ability to place a lien upon a man's property, such as to temporarily deprive him of its beneficial use, without any judicial determination of probable cause dates back not only to medieval England but also to Roman times. 14 In regard to the constitutional relevance of antiquity, Mr. Justice Holmes has stated:

'The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it, as is well illustrated by Ownbey v. Morgan, 256 U.S. 94, 104, 112, 41 S.Ct. 433, 65 L.Ed. 837.' 15

We deem a West Virginia decision, which dealt with a before judgment garnishment, to be apposite. In Byrd v. Rector 16 the nonresident defendant, who had been garnished before judgment, argued that he had been denied due process because the plaintiff had not been required to post a bond before the garnishment. The court stated:

'We think the answer to these propositions is that a defendant is not deprived of his property by reason of the levy of a copy of the attachment upon a person who is indebted to him or who has effects in his custody belonging to the defendant. The most that such procedure does is to deprive defendant of the possession of his property temporarily by establishing a...

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    ...to administrative officers where the acts of such officers are later subject to judicial review." Family Finance Corp. v. Sniadach, 37 Wis.2d 163, 176, 154 N.W.2d 259, 266 (1967), reversed on other grounds, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (Emphasis For these reasons, we d......
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