Dowling v. Lancashire Ins. Co.

• Decision Date: 11 December 1894
• Citation: 89 Wis. 96,61 N.W. 76
• Parties: DOWLING v. LANCASHIRE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 96

61 N.W. 76

DOWLING

v.LANCASHIRE INS. CO. ET AL.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Anna Dowling against Thomas Dowling. Plaintiff garnished the Lancashire Insurance Company and others to reach claims alleged to be in favor of defendant under a fire insurance policy. Judgment was rendered against garnishees, and they appeal. Reversed.

Garnishment. So far as necessary to understand the questions passed upon by the court, the facts are as follows: One Thomas Dowling was the owner of certain saloon fixtures and stock in trade in Eau Claire, and insured the same against loss by fire in the appellant companies, to the aggregate amount of $2,500. The property was destroyed by fire, December 9, 1893. Dowling was indebted to the plaintiff, Anna, at the time of the fire, in the sum of about $300. Three days after the fire, and before the service of proofs of loss, she sued Dowling and garnished the appellants. The appellants answered separately, denying all liability, and pleading other defenses, among which was the defense that no ascertainment, estimate, or proof of loss had been made or received by the garnishee prior to the commencement of the garnishee action. After the plaintiff had obtained judgment against the defendant in the main action, the garnishee actions (which had been consolidated) were tried, and judgment was rendered against the garnishees for the amount of her claim, with costs. The insurance policies which the appellants had issued were standard policies, and contained, among other provisions, the provision, in effect, that the loss should be payable 60 days after due notice, ascertainment, and satisfactory proof of the loss have been received by the company; also, that it should be optional with the company to repair or replace the property lost or destroyed, within a reasonable time, on giving notice of such intention within 30 days after receipt of the proofs of loss. The insurance companies appeal from the judgment.Doolittle & Shoemaker, for appellants.

Geo. C. & Fred. A. Teall, for respondent.

WINSLOW, J. (after stating the facts).

It has been repeatedly held by this court that a debt, in order to be subject to garnishment, must be owing absolutely at the time of the service of process, although it may be payable subsequently. Edwards v. Roepke, 74 Wis. 575, 43 N. W. 554, and cases there cited. Where the question whether...