Commercial Inv. Trust, Inc. v. William Frankfurth Hardware Co.

• Decision Date: 05 December 1922
• Citation: 179 Wis. 21,190 N.W. 1004
• Parties: COMMERCIAL INVESTMENT TRUST, INC., v. WILLIAM FRANKFURTH HARDWARE CO.
• Court: Wisconsin Supreme Court

179 Wis. 21

190 N.W. 1004

COMMERCIAL INVESTMENT TRUST, INC.,

v.WILLIAM FRANKFURTH HARDWARE CO.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court Milwaukee County; Gustav G. Gehrz, Judge.

Action by the Commercial Investment Trust, Incorporated, against the William Frankfurth Hardware Company. From an order sustaining a demurrer to the complaint plaintiff appeals. Reversed, with directions.

This is an appeal from an order of the circuit court for Milwaukee county, Hon. Gustav G. Gehrz, judge, sustaining the demurrer to the plaintiff's complaint. The action was brought to recover damages from the defendant for wrongfully depriving the plaintiff of 75 washing machines and 75 wringers, from June 17, 1920, to February 1, 1922.

The defendant brought an action in the civil court of Milwaukee county against the Blue Bird Appliance Company, and garnisheed the Chicago & Northwestern Railway Company and the Hanson Storage Company, claiming that they had property in their possession and under their control belonging to said Blue Bird Appliance Company. The railway company answered in the garnishment action that it had 75 washing machines and 75 wringers in its possession, which it had received from the Blue Bird Appliance Company, but which it had stored with the Hanson Storage Company. It further alleges that the Commercial Investment Trust, the predecessor of the plaintiff in the instant action, claimed to be the owner of such property. Said Commercial Investment Trust was thereupon interpleaded as garnishee defendant in the action in the civil court, and in its answer claimed title to said machines and wringers, and denied that the Blue Bird Appliance Company had any interest or title in said property. To this answer of the Commercial Investment Trust, the hardware company took issue, and upon the trial thereof it was determined that the property in question belonged to the interpleaded defendant, and such property was thereupon delivered to it.

The plaintiff in this action, having lawfully succeeded to all of the property and causes of action of the Commercial Investment Trust, brings this suit for the recovery of damages sustained by it, claiming that the defendant herein had wrongfully deprived it of this property from June 17, 1920, to February 1, 1922, as the result whereof it has sustained damages in the sum of $4,439.82.

It is conceded that the action and the garnishment proceedings in the civil court were instituted in good faith and without malice.

Eschweiler, J., dissenting.

Bottum, Hudnall, Lecher & McNamara, of Milwaukee, for appellant.

McGovern, Hannan, Devos & Reiss, of Milwaukee, for respondent.

DOERFLER, J. (after stating the facts as above).

The trial court held in its written opinion, and the defendant now contends, that the plaintiff can only recover damages where its cause of action is based upon malicious prosecution, and, second, that under the provisions of section 2771 of the Statutes, the plaintiff could have filed a bond in the civil court proceedings, and obtain possession of the property, and thereby have prevented any damages from accruing.

[1] The remedy afforded by garnishment is purely statutory, and though in its nature a proceeding in rem, it is in effect an action by the defendant in the plaintiff's name against the garnishee, the purpose of which is to subrogate the plaintiff to the rights of the defendant against the garnishee. McDonald v. Vinette, 58 Wis. 619, 17 N. W. 319;Morawitz v. Sun Insurance Office, 96 Wis. 175, 71 N. W. 109, 65 Am. St. Rep. 43; 12 R. C. L. 777.

[2] A garnishment, though in form an action at law, is in substance an equitable proceeding to determine the ownership of property in dispute, and results in what is termed an equitable levy.

[3] An intervener stands in the character of plaintiff before the court as to the nature of his title and the object of his demand, and is governed in his pleadings by the rules of practice which apply to plaintiffs in principal demands. 2 R. C. L. p. 884.

Section 2767 of the Statutes, in substance, provides that when the answer of the garnishee shall disclose that any other person than the defendant claims ownership to the property, such person may be interpleaded as a defendant to the garnishee action, and he is then required to answer, setting forth his claim to the property, or to make any defense which the garnishee might have made. Upon interpleader, if the interpleaded defendant defaults, the court may render judgment concluding him from any claim with respect to the property.

[4] It is argued by the defendant that by reason of the provisions of the statutes, the interpleaded defendant having been made a party to the garnishee action, and having been permitted to litigate his claim therein, and he thus having been provided with his day in court is in no different position than the defendant himself, and under the ruling in the case of Veitch v. Cebell, 105 Wis. 260, 81 N. W. 411, 76 Am. St. Rep. 914, is not in a position to recover damages for having been deprived of the possession of his property unless he can show that the proceedings in garnishment which resulted in the tying up of the property were begun maliciously, so as to form a proper basis for an action for malicious prosecution.

The relative positions of a defendant in a garnishment action such as the defendant in the Cebell Case, and an interpleaded defendant, are radically and fundamentally different. In the original action and proceedings in the civil court, the plaintiff made no claim against the interpleaded defendant. In its principal action it sought to obtain judgment on a claim against the principal defendant, and in the garnishment action attempted to become subrogated to the rights of the defendant with respect to the title, possession, and disposition of the property in the hands of the garnishee defendant. No contract relations existed between the plaintiff and the interpleaded defendant, and while the interpleaded defendant claimed ownership of the property under the principal defendant, such ownership was in no way subject to any rights or interests on the part of the plaintiff. The interpleaded defendant admittedly is a third party, not in any manner involved in the litigation between the plaintiff and defendant in the civil court action, and his property, if it is either attached or levied upon on a claim made by the plaintiff in the civil court action, is wrongfully and tortiously taken and held.

[5] The general rule, sustained by the great weight of authority, is to the effect that a person whose property has been seized by an officer under process against the property of another may maintain an action of replevin for the recovery of the property no matter from whose possession it was taken. 23 R. C. L. p. 879, and numerous cases there cited. These cases proceed upon the theory that where property of one person is seized on a process against another there can be no legal custody, but that the same is tortious, and that the person aggrieved thereby is entitled to the same remedy in the law as for any other tortious act. Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. 219;Booth v. Ableman, 16 Wis. 460, 84 Am. Dec. 711;Carpenter v. Innes, 16 Colo. 165, 26 Pac. 140, 25 Am. St. Rep. 255;Philips v. Harriss, 3 J. J. Marsh (Ky.) 122, 19 Am. Dec. 166;Hawk v. Lepple, 51 N. J. Law, 208, 17 Atl. 351, 4 L. R. A. 48, 14 Am. St. Rep. 677.

[6] And while the general rule appears as above stated, a defendant in an execution or attachment cannot replevy goods in possession of an officer under a valid process, for to allow him to question the validity of the seizure in an action of relpevin would be against public policy, for it would be moving in a circle, and the creditor would never receive the fruits of his execution. 23 R. C. L. p. 877; Power v. Kindschi, 58 Wis. 539, 17 N. W. 689, 46 Am. St. Rep. 652.

But for the intervention provided for by section 2767 of the Statutes, the plaintiff herein would have no remedy to recover possession of its property wrongfully attached and detained, excepting by the action of replevin.

[7] The action of replevin is founded on a tortious taking and detaining, and is analogous to an action of trespass, but is in part a proceeding in rem, to regain possession of the goods and chattels; and in part a proceeding in personam, to recover damages for the caption and detention. It is a possessory action the gist of which is the right of possesion in the plaintiff, and the wrongful seizure and detention by defendants, and the primary relief sought is the return of the property in specie; the damages being merely incidental. 23 R. C. L. pp. 854, 855.

[8] In the affidavit for replevin the plaintiff must allege that the property has not been taken for any tax assessment or fine, pursuant to the statute, or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure. Subdivision 4, § 2718, Stats. It would appear that the owner of property in all cases not included in the exceptions above quoted is entitled to maintain his action of replevin against any one who may have wrongfully taken or who wrongfully detains the same. The action of replevin being one of the original common-law actions based upon wrongful taking and detention of personal property, expressly contemplates the recovery of damages for such unlawful taking and detention. It was undoubtedly the object of the Legislature in enacting section 2767 of the Statutes to afford an owner such as the plaintiff in this action an opportunity to intervene in a garnishment action so that such ownership may be determined in such action. In other words, the statute affords the common-law and statutory remedy by replevin to restore the property to the rightful owner.

[9] The plaintiff having taken issue in the garnishment proceedings in the civil court with the answer of...