Diehl v. Heimann

• Decision Date: 20 November 1945
• Parties: DIEHL v. HEIMANN.
• Court: Wisconsin Supreme Court

248 Wis. 17

20 N.W.2d 556

DIEHL

v.HEIMANN.

Supreme Court of Wisconsin.

Nov. 20, 1945.

Appeal from a judgment of the Circuit Court for Milwaukee County; Roland J. Steinle, Judge.

Affirmed.

Action in garnishment by Phillip Diehl against the First Wisconsin National Bank as garnishee, and Anthony Heimann, doing business as Heimann's Bakery, as principal defendant, brought in the civil court of Milwaukee county. From a judgment of the circuit court on appeal affirming a release of the garnishee from liability, the plaintiff appeals. The facts are stated in the opinion.

Jos. F. Studnicka, of Milwaukee, for appellant.

Francis H. Reiske, of Milwaukee, for respondent.

FOWLER, Justice.

The case is an appeal from the judgment of the circuit court for Milwaukee county affirming an ‘order for release’ and a ‘release’ of a garnishee from liability by the civil court of Milwaukee county. The material portion of the civil court record before us and before the circuit court consists only of:

(1) The original affidavit of garnishment reciting that an action had been commenced in the civil court to recover an indebtedness on contract of $55; that no judgment had been entered therein; and that the garnishee defendant had money in its possession belonging to the principal defendant.

(2) The original summons in the garnishment proceeding requiring the garnishee to answer and a return of the sheriff showing service thereof and payment of $3 to the garnishee.

(3) The answer of the garnishee admitting having in its possession a sum in excess of $110 belonging to the principal defendant.

(4) An original paper, the body of which reads: ‘To First Wisconsin National Bank, East Side Branch. You are hereby released as garnishee and discharged from further liability in the above entitled case. Dated Milwaukee, Wis. January 15, 1945. By the Court. Joseph E. Cordes, Judge.'

(5) Two entries on the docket of the civil court reading: (a) ‘Jan. 10. Court having had this case under advisement and being well and sufficiently advised in the premises now orders garnishee released.’ (b) ‘Jan. 15. Garnishee released.'

(6) A notice of appeal to the circuit court reciting that the plaintiff ‘feeling aggrieved by the order for release of the garnishee made January 10, 1945 ((5)(a)) and the release and discharge of the garnishee signed by the court on the 15th day of January, 1945 ((4) above set out) does hereby appeal from said order and release and from the whole thereof. * * *.’ The portion of the notice here omitted contains a recital that judgment was entered and docketed on January 12th in the ‘principal action’ in favor of the plaintiff and against the defendant for $37.95.

We must decide the case on the record before us. We can not accept the statement in the notice of appeal to the circuit court that the judgment was entered as stated in the principal action without evidence that is competent that it was so entered and we have no such evidence. In this situation we can not assume that the judgment of the circuit court was erroneous. If the judgment of the civil court in the principal action was in favor of the defendant, and there is no evidence or recital of the court in the record that it was not, the discharge of the garnishee was correct. The burden is on the appellant to produce a record that shows that the judgment appealed from is erroneous, and this he has not done. The circuit court being a court of general jurisdiction, the correctness of its judgment is presumed in absence of evidence to the contrary. Wolf v. Green Bay, O. M. & S. W. R. Co., 140 Wis. 337, 122 N.W. 743. This is the general rule. 20 Am.Jur. 172, § 168. The judgment of the circuit court must therefore be affirmed.

The appellant moved to strike respondent's brief because it states facts not of record and based his argument on those facts. It may be noted that the brief of the appellant is quite as faulty for stating facts not of...