Badger Lumber Co. v. Stern

• Decision Date: 10 January 1905
• Citation: 101 N.W. 1093,123 Wis. 618
• Parties: BADGER LUMBER CO. v. STERN (BATES, GARNISHEE).
• Court: Wisconsin Supreme Court

123 Wis. 618

101 N.W. 1093

BADGER LUMBER CO.

v.STERN (BATES, GARNISHEE).

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by the Badger Lumber Company against Richard Stern, with William Bates as garnishee. From a judgment against the garnishee, defendant Stern appeals. Reversed.

It appears from the record that December 15, 1903, the plaintiff commenced this action against the defendant Richard Stern, and at the same time garnished the defendant Bates; that Bates, as such garnishee, answered to the effect that he, as such garnishee, was indebted to the defendant Richard, and that such indebtedness was incurred May 21, 1903, by his entering into a written agreement with Richard Stern and Anna Stern, his wife, wherein and whereby he agreed to pay said Richard and Anna Stern $300, for which they, when such sum should be fully paid, were to convey to him the 40 acres of land therein described; that said sum was to be paid in 12 several installments, of $25 each, payable on the 21st day of May, July, September, November, January, and March of each year, until fully paid, the first installment being payable May 21, 1903; that four of such payments had been made prior to the service of the garnishee summons, and that eight payments, aggregating the sum of $200, remained to be paid; that he had the option of paying at any time; that such indebtedness was absolute, and not subject to any contingency, but was not to bear interest; that otherwise he had no property or effects belonging to Richard Stern. Judgment by default having been entered in favor of the plaintiff and against Richard Stern for $270.05, with costs, and the answer of the garnishee not having been traversed, but accepted and taken by the plaintiff as true, and the cause having been submitted and tried upon such answer, thereupon the court found that Bates was liable to the plaintiff for the amount of such indebtedness in the sum of $200, and ordered judgment to be entered in favor of the plaintiff and against Bates for that amount, less $3 for costs in favor of Bates as such garnishee. From the judgment entered against the garnishee accordingly, the principal defendant, Richard Stern, brings this appeal.Weed & Van Doren, for appellant.

F. Y. King, for respondent.

CASSODAY, C. J. (after stating the facts).

It was competent for the principal defendant, Richard, to appeal from the judgment against the garnishee. Section 2765, Rev. St. 1898; Veitch v. Cebell, 105 Wis. 261, 81 N. W. 411, 76 Am. St. Rep. 914;Schomberg H. L. Co. v. Engel, 114 Wis. 273, 90 N. W. 177. Whatever may be the rule in other jurisdictions, it is well settled in this state that a debt due jointly to the principal defendant and another or others cannot be reached by garnishment in an action against such defendant alone....