Eau Claire Nat. Bank v. Chippewa Valley Bank

• Decision Date: 05 April 1905
• Citation: 102 N.W. 1068,124 Wis. 520
• Parties: EAU CLAIRE NAT. BANK v. CHIPPEWA VALLEY BANK ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 520

102 N.W. 1068

EAU CLAIRE NAT. BANK

v.CHIPPEWA VALLEY BANK ET AL.

Supreme Court of Wisconsin.

April 5, 1905.

Appeal from Circuit Court, Eau Claire County; James O'Neil, Judge.

Action by the Eau Claire National Bank against John T. Friend and others; Chippewa Valley Bank, garnishee. From a judgment against it, the garnishee appeals. Modified.

It appears from the record that May 28, 1902, the plaintiff commenced an action against John T. Friend and three other parties to recover $5,976, over and above all offsets, founded upon express contract. In addition to the facts mentioned, the affidavit for garnishment stated, in effect, that the affiant believed that Louisa E. Friend and the Chippewa Valley Bank were indebted to or had property, real or personal, in their possession or under their control, belonging to the defendant, John T. Friend, who had not property liable to execution sufficient to satisfy the plaintiff's demand, and that such indebtedness or property was, to the best of the affiant's knowledge and belief, not by law exempt from seizure and sale upon execution. The Chippewa Valley Bank, through its cashier, on June 3, 1903, separately answered such garnishee upon oath, and therein stated that at the time of the service of the garnishee summons upon it “the Chippewa Valley Bank was then, and is now, in no manner and upon no account whatever indebted or under liability to the defendant, John T. Friend, and that it then had, and now has, in its possession or under its control, no real estate and no personal property or credits of any description whatever belonging to said defendant or in which he has any interest, and is in no manner liable as garnishee in this action.” On the same day the plaintiff's attorneys notified the attorneys of the Chippewa Valley Bank that the plaintiff thereby elected to take issue on the answer of the Chippewa Valley Bank therein to the garnishee summons, and would maintain it to be liable as garnishee. June 16, 1902, Louise E. Friend separately answered such garnishee upon oath to the same effect as the answer of the Chippewa Valley Bank, and on the same day the plaintiff, by its attorneys, notified the attorneys for the said Louise E. Friend that they thereby elected to take issue on the answer of Louise E. Friend therein, and would maintain her as liable as garnishee. April 18, 1903, the plaintiff recovered judgment in the circuit court in the original action against John T. Friend, and the other three parties referred to, in the sum of $6,621.18 damages and costs. April 11, 1904, such issues on the respective answers of the garnishees, the Chippewa Valley Bank and Louise E. Friend, were tried, and at the close of the trial the court found, as matters of fact, in effect: (1) That judgment was rendered and entered in the original action as stated; (2) that at the time of the garnishment (May 28, 1902) the Chippewa Valley Bank had in its possession and under its control a certain promissory note secured by mortgage on real estate, dated July 10, 1900, and executed and delivered by Theodore and Ida Maas, and payable to John T. Friend, for $800, with interest, amounting in all on that date to $844.88 together with an assignment of said note and mortgage by John T. Friend to Louise E. Friend dated February 13, 1902; also a satisfaction of said mortgage, dated May 23, 1902, and executed by Louise E. Friend; also a check signed by William A. Teall, agent, on the “New Bank of Eau Claire,” payable to the order of the Chippewa Valley Bank, for $844.88, which had been delivered to and accepted by the Chippewa Valley Bank in payment of said note and mortgage, and which was afterwards, and on May 28, 1902, paid by said New Bank of Eau Claire to the Chippewa Valley Bank, and which property so in the hands of the Chippewa Valley Bank was at the time of the value of $844.88; (3) that said note and mortgage and check at the time of the garnishment were owned by and the property of John T. Friend, and the note and mortgage had been placed in the Chippewa Valley Bank for collection and payment by Louise E. Friend; (4) that said assignment of the note and mortgage from John T. Friend to Louise E. Friend was made by said John T. Friend, and received by Louise E. Friend, for the purpose of hindering, delaying, and defrauding the creditors of John T. Friend, and that in making said assignment said Louise E. Friend had notice of and participated in said fraud; that at the time of making the assignment the plaintiff was a creditor of John T. Friend, and said assignment was void as against the plaintiff; (5) that the note and mortgage were not purchased by the said Louise E. Friend from the said John T. Friend for a valuable consideration paid out of her separate estate; (6) that the Chippewa Valley Bank at the time of the garnishment had notice of the fact that the plaintiff claimed that said property was the property of John T. Friend; that the assignment thereof by him to his wife, Louise E. Friend, was fraudulent and void as against the plaintiff; and the Chippewa Valley Bank also had notice that by said garnishment the plaintiff sought to reach, levy on, and hold said property as the property of John T. Friend; (7) that the garnishee, Louise E. Friend, had no right, title, or interest in said note, check, or mortgage, or the proceeds thereof as against the plaintiff herein. And, as conclusions of law, the court found, in effect, that the plaintiff is entitled to judgment against the Chippewa Valley Bank for $844.88, with interest thereon from May 28, 1902, besides the costs in this action; and, for judgment, that Louise E. Friend acquired no interest in said note and mortgage by virtue of said assignment as against this plaintiff. Judgment was thereupon entered in accordance with such findings. From that judgment the Chippewa Valley Bank brings this appeal.Bundy & Wilcox, for appellant.

Weekham & Farr, for respondent.

CASSODAY, C. J. (after stating the facts).

It is contended by counsel that the Chippewa Valley Bank, as a matter of pure accommodation, received the papers mentioned in the foregoing statement from one party, to be delivered to another, upon payment by that other of a sum of money in exchange for the papers, the bank having no interest whatever in the transaction, not even making a charge for the services. In the principal case relied upon in support of such contention, “the answers of the supposed trustee” disclosed the facts that: “He had been in treaty with the defendant for a cow, to be purchased if approved. No bargain had been completed, and before the time of trying the cow had expired, and before the service of the plaintiff's writ, he had notified the defendant that he should not purchase the cow, and had delivered her to him, but the defendant left her in his possession, where she was at the time of the service of the plaintiff's writ.” Staniels v. Raymond, 4 Cush. 314, 315. Upon such facts it was there held, in effect, that the mere possession by...