German-American Bank v. Butler-Mueller Co.

• Decision Date: 10 April 1894
• Parties: GERMAN-AMERICAN BANK v. BUTLER-MUELLER CO. (PABST BREWING CO. ET AL., GARNISHEES).
• Court: Wisconsin Supreme Court

87 Wis. 467

58 N.W. 746

GERMAN-AMERICAN BANK

v.BUTLER-MUELLER CO. (PABST BREWING CO. ET AL., GARNISHEES).

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by the German-American Bank against the Butler-Mueller Company and others as defendants, and the Pabst Brewing Company and others as garnishees. Defendant company's motion to set aside the garnishment was denied, and defendants appeal. Reversed.

On August 21, 1893, the respondent owned a promissory note made by the appellant, with Mueller & Son guarantors of payment, on which there was unpaid the sum of $1,000, with a small amount of interest. On that day the plaintiff commenced an action against all the parties liable on the note to recover the balance due upon it. The plaintiff's cashier made an affidavit for garnishment in the form required by section 2753 of the Revised Statutes. A summons in garnishment was issued thereon, and served upon the garnishees named in the affidavit. The parties garnished were indebted to the defendants. The defendants at once moved to set aside the garnishee process, and to dismiss the garnishee action as an abuse of the remedy by garnishment. It was claimed by the defendants that the affidavit upon which the garnishment summons was issued, in the respect wherein it stated that the affiant “verily believes that said defendants have not property liable to execution sufficient to satisfy the plaintiff's demand,” was neither true in fact nor believed to be true by the affiant at the time of making it; but that, on the contrary, the defendants had property subject to execution many times sufficient to satisfy the plaintiff's demand, and this to the knowledge of the person making the affidavit. The affidavits in support of the motion showed that the defendants Mueller & Son, as copartners, owned and were operating a box factory in Milwaukee, within less than a mile of plaintiff's bank; that the value of such factory and stock was upwards of $70,000; that it was subject to a mortgage of $25,000, and no more; that the defendant the Butler-Mueller Company owned a sawmill in Marinette county, worth, with its stock of lumber, logs, merchandise, and other property therewith situate, upwards of $80,000, and pine lands in this state of the value of upwards of $35,000; that on the pine lands was a mortgage of $11,000, and no more; that, except the mortgages mentioned, all of the said property of the said defendants was unincumbered; that the cashier of the plaintiff, at the time when he made the affidavit for garnishment, knew that the defendants Mueller & Son owned and operated the said box factory, and that the Butler-Mueller Company owned a large amount of property in this state subject to execution. On the part of the plaintiff it is not denied that the defendants owned the property mentioned in their affidavits, nor that its officers knew that they owned it. But it is claimed that the defendants were insolvent, and were about to make assignments for the benefit of their creditors, to the knowledge of plaintiff's officers; that they did make such assignments on the same day and the day succeeding the garnishment; so that at the time when this...