Blabon v. Gilchrist
| Decision Date | 21 September 1886 |
| Parties | BLABON AND OTHERS v. GILCHRIST. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Chippewa county.Rublee A. Cole, for appellants, Joseph W. Blabon and others.
Stafford & Connor, for respondent, Mary L. Gilchrist.
This is an appeal from an order of the circuit court refusing to vacate and set aside certain orders and rulings made by a court commissioner in proceedings supplementary to an execution taken by the plaintiffs under the provisions of section 3030, Rev. St. 1878. The proceeding was based upon an affidavit of the attorney for the appellants. The affidavit was sufficient to authorize the commissioner to make an order requiring the judgment debtor, Mary L. Gilchrist, to appear before him, and answer concerning her property as required by said section; but the affidavit further states that the deponent believed that Hugh G. Gilchrist, the husband of the respondent, had property belonging to the said respondent under his control, and an order was asked for requiring said Hugh G. Gilchrist also to appear before said commissioner, and answer concerning any property belonging to said Mary L. Gilchrist which he may have under his control. The affidavit also asked an order restraining the respondent and the said Hugh G. Gilchrist from making any transfer or other disposition of such property not by law exempt, etc.
The court commissioner made the following order:
“[Title of Cause.]
State of Wisconsin, Chippewa county--ss.:
It appearing to me by the affidavit of Rublee A. Cole, in this action, that an execution upon the judgment in the above-entitled action against the property of Mary L. Gilchrist, the judgment debtor therein, has been duly issued to the sheriff of the proper county, and returned wholly unsatisfied, and that Hugh G. Gilchrist is thought to have property belonging to said Mary L. Gilchrist under his control, I do hereby require you, the above-named Mary L. Gilchrist and the said Hugh G. Gilchrist, to appear before me, at the office of Marshall & Jenkins, in the city of Chippewa Falls, in said county and state, on the second of April, A. D. 1886, at two o'clock in the afternoon, to answer on oath concerning the property of the said Mary L. Gilchrist, and to abide and perform such further or other order as may be made by me in the premises; and in the mean time, and until the further order to the contrary, you, the said Mary L. Gilchrist and Hugh G. Gilchrist, are hereby enjoined and restrained from making any transfer or other disposition of the property of the said Mary L. Gilchrist not exempt by law from execution, and from any interference therewith.
Dated the twenty-fifth of March, 1886.
JOHN J. JENKINS,
Court Commissioner, Chippewa Co., Wis.”
This order was served upon the respondent and her husband, Hugh G. Gilchrist, and on the day named therein the respondent and her husband, Hugh G., appeared before the commissioner. A motion was then made on the part of Hugh G. Gilchrist that he be released and discharged from the operation of the order and the injunction. The commissioner granted the motion and discharged the order as to Hugh G. Gilchrist. Afterwards, upon the hearing on the order as to the respondent, Mary L. Gilchrist, the plaintiffs requested that Hugh G. Gilchrist, the husband of the defendant, be sworn and examined as a witness concerning any property he may have belonging to the defendant. The commissioner decided that the husband could not be examined as a witness against his wife, the defendant in the action. After the evidence taken before the commissioner was closed, the plaintiffs moved that the commissioner make an order that Hugh G. Gilchrist turn over to the plaintiffs $300, which they claimed the testimony disclosed was in the hands of said Hugh G. The commissioner refused to make such order; and thereupon, on motion of the respondent, the commissioner made an order requiring the plaintiff to pay five dollars costs, which order was granted. To all these rulings of the commissioner the appellants duly excepted.
Afterwards, upon an affidavit on the part of the plaintiffs setting out the proceedings had, and rulings and orders made by the commissioner, upon such pleadings, the appellants procured an order to be made by the circuit court requiring the respondent to show cause, before the circuit court, on a day named in said order, why the ruling and order of the court commissioner made in said proceedings should not be set aside and reversed, and a re-examination had of said Hugh G. Gilchrist; why the order granting the defendant costs should not be reversed; why the injunctional order against said Hugh G. Gilchrist should not be ordered to stand in full force; and why an order should not be entered requiring the said Hugh G. Gilchrist to pay over and apply $300 in accordance with the order in that respect applied for and refused by the commissioner; and why the said proceeding before the court commissioner should not be reviewed fully and wholly, or such other order and relief granted as shall be just and proper. A copy of the order to show cause, with a copy of the affidavit, was duly served upon the defendants and the said Hugh G. Gilchrist, as required in said order to show cause. At the time fixed in the order, and upon due proof of the service of a copy of the order and affidavit as required, a hearing was had in the circuit court upon such order, the plaintiffs appearing by their attorney, and the defendant and the said Hugh G. Gilchrist appearing by their respective attorneys. After hearing the respective parties, the circuit court made the following order:
“[Title of cause.]
The above-entitled cause coming on to be heard before the court upon the order to show cause why the order of the court commissioner made in the above-entitled case in proceedings supplementary to execution had and made before him on the eleventh day of May, 1886, should not be vacated, modified, and set aside, and after hearing Rublee A. Cole, Esq., attorney for plaintiffs, in support of motion, and Stafford & Connor, attorneys for defendant, contra, it is ordered that the order to show cause be dissolved, and plaintiffs' motion denied; and it is further ordered that plaintiffs pay to Stafford & Connor, defendant's attorneys, the sum of ten dollars, costs of motion, within twenty days; and it is further ordered that the order of the court commissioner, Hon. J. J. Jenkins, made in said supplementary proceedings on the eleventh day of May, 1886, be, and the same hereby is, in all things affirmed.
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¦By the court,¦S. H. CLOUGH, Circuit Judge.”¦
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From the order of the circuit court the plaintiffs appeal to this court, and...
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