Kremer v. Arians

• Decision Date: 22 February 1910
• Citation: 141 Wis. 662,124 N.W. 1064
• Parties: KREMER v. ARIANS.
• Court: Wisconsin Supreme Court

141 Wis. 662

124 N.W. 1064

KREMER

v.ARIANS.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Felix A. Kremer against Barbara Arians. From a judgment for plaintiff on appeal from a justice, defendant appeals. Affirmed.

Plaintiff, having obtained judgment in justice's court for some $105 and costs against one Edith Reynolds, issued execution thereon, and on the 18th day of November, 1898, made necessary affidavit and procured to be issued a garnishee summons in aid of the execution against one A. C. Hoppmann, returnable December 18th. Hoppmann on the return day delivered to the justice a note and mortgage for $400 upon certain real estate, also two checks of $50 each, indorsed by said Hoppmann, with answer that he held them in trust for, and belonging to, said Edith Reynolds pursuant to an agreement for settlement of her property rights in a divorce action, but they were claimed to be owned by virtue of a transfer from Edith Reynolds by her mother, Barbara Arians. Both Edith and Barbara appeared upon the order of the court interpleading the latter, and answered, asserting the latter's ownership of the note, mortgage, and the checks. Hoppmann was dismissed. It appeared that the property had been placed in Hoppmann's hands by mutual written agreement between Edith Reynolds and her husband as a method of effecting distribution of his property and to secure an agreement that a divorce judgment should be entered, giving her $100 and a mortgage substantially to the same effect for $400, and that, in event of failure so to do, this property should be turned over to her. The court found that the judgment of divorce had been entered, and that all the conditions and events existed to entitle Edith Reynolds to these documents at the time of the service of the garnishee summons. Evidence was given of an attempted purchase of the property rights under the divorce judgment by Barbara Arians. In justice's court this was held valid and Mrs. Arians entitled to the property. Plaintiff appealed to the circuit court, where the matter was heard upon the same evidence, and the court found that the transfer was ineffective to convey to Mrs. Arians either the note and mortgage or the checks, and that the attempted transfer was not made in good faith, but for the purpose of hindering, delaying, and defrauding the creditors of Edith Reynolds, and particularly the plaintiff, and accordingly rendered judgment that at the expiration of 10 days the clerk of the court pay to the plaintiff the $100 proceeds of the two checks, and that, unless the defendant Reynolds should pay the balance due on plaintiff's judgment in the main action and the costs, the note and mortgage be sold by the sheriff as property is sold on execution, and, after deducting the fees and expenses of sale, the sheriff pay to the plaintiff the amount due on his said judgment. From this judgment Barbara Arians appeals.Ollis & Nelson, for appellant.

J. Burritt Smith, for respondent.

DODGE, J. (after stating the facts as above).

Jurisdiction of the justice is assailed because on the return day of the garnishee summons the execution was returned nulla bona. No statute or holding of this court is cited declaring any necessity for the execution to persist. The service of the garnishee summons is not a seizure of property upon the execution, for it is only authorized in case no property can be seized. Section 3700, St. 1898. It is the institution of an action against the garnishee to proceed like other actions. Id. It depends, under our statutes, not on any levy or seizure by virtue of the execution, as in some states, but on the absence of such levy. Seizure being not an essential to the jurisdiction of the suit, persistency of the particular executionseems in no wise necessary to the continuation of the justice's jurisdiction to hear and decide the action. His custody of the disputed property even when turned over to him is not retained by authority of the execution, which runs, and gives authority, only to the constable or sheriff. The justice's right rests on the special statute authorizing him to receive and hold the property when surrendered by the garnishee in response to the summons and in exoneration of the latter's personal liability. Section 3723b, St. 1898. For these and other reasons, we are satisfied that our statutory scheme does not contemplate the perpetuation of the execution by monthly renewals during the months or years through which the trial of questions of...