Kuehn v. Nero

• Decision Date: 30 April 1907
• Parties: KUEHN v. NERO ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 610

111 N.W. 724

KUEHN

v.NERO ET AL.

Supreme Court of Wisconsin.

April 30, 1907.

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

Garnishee action by Ernst Kuehn against Dave Nero and the Menominee River Sugar Company, as garnishee in aid of an execution issued on a judgment for plaintiff in justice court in a replevin action. From a judgment for plaintiff, defendants appealed to the circuit court, which granted defendants' motion of dismissal, from which plaintiff appeals. Reversed and remanded.

Garnishee action in aid of an execution issued on a judgment entered in justice court in a replevin action.

The execution creditor made and delivered to the constable who held the execution an affidavit in substantial compliance with the statute for the purpose of having an alleged creditor of the execution debtor duly summoned as garnishee. A summons was served accordingly on such creditor and also on an agent of the garnishee, the latter being a corporation, and the officer not being able to find it within his county. The garnishee duly appeared and answered admitting the indebtedness to the execution debtor at the time of the service of the garnishee summons to the extent of $91.68. Such debtor duly appeared and answered denying all the allegations of the garnishee affidavit and claiming that the indebtedness from the garnishee was exempt from seizure because the same consisted of wages for labor performed by such debtor during three months prior to the making of the answer, and at not exceeding $60 per month.

As a result of the trial of the garnishee action, judgment was rendered in favor of the plaintiff from which an appeal was taken to the circuit court. There the attorneys for the defendants moved for a dismissal for want of jurisdiction. The motion was granted and judgment of dismissal with costs and discharging the garnishee from all liability was rendered.

A bill of exceptions was settled merely showing that upon the case being called for trial, before entering upon the examination of witnesses, a motion was made on behalf of the defendants to dismiss the action upon the ground that the court had no jurisdiction thereof; that the motion was granted; that due exception was taken thereto and that judgment was rendered accordingly and docketed in the office of the clerk of the circuit court for Shawano county June 28, 1906.F. Y. King, for appellant.

Olen & Olen, for respondents.

MARSHALL, J. (after stating the facts).

Counsel present the case as if the proceedings before the justice in the...