Bates v. Chi., M. & St. P. Ry. Co.

• Decision Date: 08 April 1884
• Citation: 19 N.W. 72,60 Wis. 296
• Parties: BATES v. CHICAGO, M. & ST. P. RY. CO., GARNISHEE, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 296

19 N.W. 72

BATES

v.CHICAGO, M. & ST. P. RY. CO., GARNISHEE, ETC.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from circuit court, Racine county.Fuller & Fuller and H. H. Field, for appellant, Chicago, M. & St. P. Ry. Co., garnishee, etc.

Robert F. Pettibone, for respondent, Alphonzo C. Bates.

TAYLOR, J.

The facts in this case are as follows: On the second day of March, 1882, the respondent commenced an action against P. H. Cunningham in the Racine county circuit court, and at the same time made an affidavit as required by law, and issued a garnishee summons against the railway company. A copy of the affidavit and garnishee summons was served upon John W. Cary, the general solicitor of said company, at the city of Milwaukee, on the second day of March, 1882, at 5 o'clock A. M. of that day. In due time the railway company made answer to said garnishee summons, denying any indebtedness by the company to said Cunningham, and also denying that it then had or now has in its possession or under its control any real estate, personal property, effects, or credits of any description whatever belonging to the said Cunningham, or in which he has any interest, and alleging that the company is in no way liable as garnishee in the action. Upon this answer the plaintiff took issue. On the trial of the issue it appeared that at the time the garnishee summons was served on the general solicitor of the company at Milwaukee, the railway company had a car-load of hogs in its possession, shipped by the defendant Cunningham at Lyons, Walworth county, in this state, on the first day of March, 1882, consigned to one G. B. Van Norman at the Union stock-yards in Chicago; that at the time the garnishee summons was served in Milwaukee on the general solicitor, the car-load of hogs was in actual transit, on its way to Chicago, and was already south of the boundaries of this state and in the state of Illinois; and that the hogs were delivered by the company's agents to the consignee in Chicago at 7:20 o'clock A. M. on said second day of March, 1882. The jury found that Cunningham owned the car-load of hogs at the time the summons was served, notwithstanding the fact that they were consigned to Van Norman.

On the trial the counsel for appellant requested the circuit judge to instruct the jury as follows: “ First. If you find, from the evidence, that at the time the garnishee summons was served on the defendant garnishee, the Chicago, Milwaukee & St. Paul Railway Company, on March 2, 1882, the consignment of hogs in question was outside of the state of Wisconsin, then the defendant railroad company is not liable as garnishee, and you must find for the defendant. Second. If you find, from the evidence, that the garnishee summons was served on the defendant at an unreasonable hour in the morning, and at such a time that the garnishee defendant could not stop the delivery of the consignment of hogs in question, then and in that case the defendant railroad company is not liable as garnishee, and you must find for the defendant. Third. If you find, from the evidence, that the consignment of hogs in question arrived in Chicago, in the state of Illinois, at about 7 o'clock A. M. on March 2, 1882, and were delivered at about 7:20 A. M. of the same day, and further find that the garnishee summons was served in the city of Milwaukee, Wisconsin, at 5 A. M. of the second of March, A. D. 1882, then the service of the garnishee summons was at an unreasonable time, and the defendant railroad company is not liable as garnishee.” The learned circuit judge refused to give either of said instructions, and the defendant took proper exceptions to such refusal.

The jury found a special verdict as follows: “ First. At the time of the service of the garnishee summons upon the Chicago, Milwaukee & St. Paul Railway Company in this action, was said railway company in possession of a car-load of hogs, shipped by the defendant, P. H. Cunningham, to G. B. Van Norman, Chicago, Ill.? Answer. Yes. Second. What was the value of said car-load of hogs shipped by P. H. Cunningham to G. B. Van Norman, March 1, 1882, and delivered to Van Norman's agent at Chicago at 7:20 A. M., March 2, 1882? A. $726.40. Third. Did the consignment of hogs in question, shipped by P. H. Cunningham from Lyons and Burlington, Wis., to G. B. Van Norman, Chicago, Ill., on the first day of March, 1882, belong to said P. H. Cunningham, and did he own said hogs? A. Yes. Fourth. To whom did the car-load of hogs shipped from Lyons and Burlington, Wis., to G. B. Van Norman, Chicago, Ill., March 1, 1882, belong at the time of the service of the garnishee summons in the case? A. P. H. Cunningham. Fifth. Was the said consignment of hogs outside of the state of Wisconsin and of the county of Racine, and in transition, at the time the garnishee summons in this case was served on the Chicago, Milwaukee & St. Paul Railway Company, on March 2, 1882? A. Yes. Sixth. Was the property in question delivered by the Chicago, Milwaukee & St. Paul Railway Company to Van Norman's agent at Chicago at 7:20 A. M., March 2, 1882? A. Yes. Seventh. Was the garnishee summons served on John W. Cary, general solicitor of the garnishee defendant, at 5 o'clock A. M., March 2, 1882? A. Yes. Eighth. Did the garnishee defendant, the Chicago, Milwaukee & St. Paul Railway Company, at the time of the service of the garnishee summons herein, have any property in its possession owned by P. H. Cunningham? A. Yes. Ninth. Do you find for the plaintiff or for the garnishee defendant? A. For plaintiff.” Upon this verdict both parties moved for judgment. The court rendered judgment in favor of the plaintiff, holding the company liable as garnishee. From such judgment the company appeal to this court.

After a careful consideration of the facts, and the arguments of the learned counsel for the respective parties, we have concluded that the learned circuit judge erred in refusing to instruct the jury as requested by the appellant, and also in rendering judgment in favor of the respondent upon the special verdict.

1. It seems to us very plain that where the law authorizes the service of a garnishee summons upon an officer of a corporation who has not in his actual possession the property sought to be reached by such process, but such property is in the possession of some other officer or employe of the company, and such other officer or employe delivers such property to a person authorized to receive the same, before he can, with reasonable diligence on the part of the officer served, be notified to retain the possession thereof, such service is not sufficient to charge the corporation as garnishee. Nor do we think the officer served is under obligation to use extraordinary diligence in notifying the officer or other employe in charge of the property of the service of the process. He is bound to use reasonable diligence in respect to the matter, and if by the use of reasonable diligence notice cannot be given to the person in the actual possession of the property before it has lawfully passed from the possession of the corporation, the corporation cannot be held liable as garnishee in respect to such property. In this case the garnishee summons was served at an unusual time, 5 o'clock in the morning, on the second of March, at a time when the officer was probably in his bed, upon an officer who, as the evidence shows, had no knowledge of the fact that the company had any property of the defendant is its possession, and whose business did not require him to have any knowledge upon that subject; and, so far as the evidence in this case shows, he had at hand no ready means of ascertaining the fact that it had any property of defendant in its possession, and within two and one-half hours of the service of the process upon such officer of the company the property sought to be reached by the proceeding is without notice delivered to the person entitled to receive the same, under the contract by which the company held possession of it when the summons was served, at a place nearly a hundred miles from the place where the officer was served with the summons. We think that, as a question of law, the service was insufficient to charge the company as garnishee. We think the rule applicable to the notice which must be given by the vendor to stop goods in transitu, should apply to a case of this kind. The rule applicable to such cases is well stated by PARK, B., in Whitehead v. Anderson, 9 Mees. & W. 534. He says: “If notice be given to the principal whose servant has the actual possession of the goods, it must be given at such a time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servant to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery.” It seems to us that it would be the height of injustice to hold the railroad company liable as garnishee for goods which their servants and employes have delivered to the consignees entitled to receive them, having no notice at the time of making such delivery that any garnishee process had been served, and before a reasonable time had elapsed, after the service upon a distant officer of the corporation, within which notice could have been given to stop such delivery. To hold the company liable in such case would do violence to the statute which directs that “the court shall render such judgment in all cases as shall be just to all the parties, and properly...