J. I. Case Threshing Mach. Co. v. Miracle

• Decision Date: 07 February 1882
• Citation: 54 Wis. 295,11 N.W. 580
• Parties: J. I. CASE THRESHING MACHINE CO. v. MIRACLE, EX'R, GARNISHEE.
• Court: Wisconsin Supreme Court

54 Wis. 295

11 N.W. 580

J. I. CASE THRESHING MACHINE CO.

v.MIRACLE, EX'R, GARNISHEE.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Winnebago county.

This is a garnishee action in aid of an execution issued on a judgment recovered by the plaintiff company against Charles Miracle. The defendant, the executor of the estate of Joseph Miracle, was summoned, soon after he had qualified as such executor, and before the expiration of the time fixed by the proper county court, for presentation of claims against the estate of the testator. The testator by his will bequeathed $400 to Charles Miracle, the execution debtor. When the executor was summoned as garnishee he had several thousands of dollars in his hands belonging to the estate, the same being the proceeds of a sale of real estate. The garnishee answered the above facts, and the plaintiff made an issue on his answer. Before the issue was tried the estate of the testator was settled, and the county court made a final order of distribution, in which the executor was directed to pay the amount of the above legacy to the execution debtor. On the trial of the issue the circuit court held that the executor was not liable to garnishment, and gave judgment for the garnishee. The plaintiff appeals from the judgment.Crozier & Tyrrell, for appellant.

Geo. W. Burnell, for respondent.

LYON, J.

The precise question presented by this appeal may be thus stated: Can a legacy to a judgment debtor be reached by garnishee process against the executor, issued and served before the final order of distribution; the trial of an issue taken upon the answer of the garnishee having been had after such order was made directing the executor to pay such legacy to the judgment debtor? The authorities are almost uniform that an executor or administrator is not liable to garnishee or trustee process before a final order for the distribution of the estate is made, unless he is rendered so liable by some provision of statute. We have no statute in this state which takes such a case out of the general rule. Many of the cases which uphold this rule are cited in the brief of counsel for defendant. Indeed, we have been referred to but one case--Stratton v. Ham, 8 Ind. 84--which holds the contrary rule. This is an exceptional case, and in a learned and elaborate note appended to it numerous cases are cited, and the unsoundness of the decision demonstrated on principle and by authority. Very...