Kuehn v. Nero

• Decision Date: 21 February 1911
• Citation: 145 Wis. 256,130 N.W. 56
• Parties: KUEHN v. NERO (MENOMINEE RIVER SUGAR CO., GARNISHEE).
• Court: Wisconsin Supreme Court

145 Wis. 256

130 N.W. 56

KUEHN

v.NERO (MENOMINEE RIVER SUGAR CO., GARNISHEE).

Supreme Court of Wisconsin.

Feb. 21, 1911.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by Ernst Kuehn against David Nero, otherwise David Neroz; Menominee River Sugar Company, garnishee. From a judgment dismissing the garnishment proceedings, plaintiff appeals. Affirmed.

In February, 1902, plaintiff commenced an action of replevin against the defendant to recover a cow. During the pendency of the action, the parties stipulated that the defendant might retain possession of the animal until the justice rendered his decision in the action. The justice found in favor of the plaintiff and entered an order in his docket requiring the defendant to deliver the possession of the cow to the plaintiff, and also assessed plaintiff's damages for the wrongful detention of the animal at $25, for which sum judgment was entered, with costs. The defendant never complied with the order, and the judgment for damages and costs has not been paid. An execution was issued on the judgment on November 6, 1905, and the officer returned that he was unable to find any property out of which the same might be satisfied. Such execution did not correctly state the amount of the judgment on which it was issued. On November 7th a garnishee summons based on the execution was served on the agent of the Menominee River Sugar Company, a foreign corporation. That company first answered admitting liability as garnishee, but later filed an amended answer setting forth in detail the transaction between it and the defendant, the substance of which was as follows: On March 22, 1905, the defendant and the garnishee entered into a contract whereby the defendant agreed to plant one acre of land to sugar beets; the seed to be furnished by the garnishee. The contract provided that all beets raised thereunder should be delivered to the garnishee as requested after October 1st, and that they should be delivered to the company on board cars on Siding No. 170, and there weighed and tared under the direction of the company's representative. The company agreed to pay the freight on the beets. When the grower loaded beets at a point where there were no wagon scales, the beets should be weighed and tared at the company's factory at Menominee, Mich. The price agreed upon was $4.60 per ton. The contract also provided that “the company will not accept beets grown from seed not furnished by them, nor will they receive or pay for rotten beets nor beets testing under 10 per cent. of sugar.” The defendant produced a car load of beets under this contract and loaded the same into a car on November 4, 1905, at the siding specified. The beets arrived at Menominee, Mich., on November 12, 1905. How they were routed, or where they were when the garnishee summons was served, does not appear. Judgment was rendered in the action dismissing the garnishee proceedings.F. Y. King, for appellant.

Olen & Olen, for respondent.

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

The respondent moved to dismiss the appeal because of insufficient justification of the sureties to the undertaking on the appeal. After the motion was made, the appellant amended the undertaking so as to conform to the statute. The correction was made after the time had expired within which an appeal might be taken. The motion presents substantially the same situation as was before the court in Ady v. Barnett, 142 Wis. 18, 124 N. W. 1061, and under the ruling of that case the motion to dismiss must be denied.

The court found that the judgment in the replevin action was void; that the execution issued thereon was void, even if the judgment were valid; and that the garnishee had no money or property in its hands belonging to the defendant at the time the garnishee summons was served. It is unnecessary to pass upon the first two grounds upon which the court based its decision, although it might not be out of place to remark that, under the later decisions of this court, such as Givans v. Searle, 136 Wis. 608, 118 N. W. 202,Cowles v. Neillsville, 137 Wis. 384, 119 N. W. 91, and Kremer v. Arians, 141 Wis. 662, 124 N. W. 1064, the judgment and execution were held void on technical grounds which would hardly meet our...