O. L. Packard Mach. Co. v. Laev

• Decision Date: 11 October 1898
• Citation: 100 Wis. 644,76 N.W. 596
• Parties: O. L. PACKARD MACHINERY CO. v. LAEV.
• Court: Wisconsin Supreme Court

100 Wis. 644

76 N.W. 596

O. L. PACKARD MACHINERY CO.

v.LAEV.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Garnishment proceedings by the O. L. Packard Machinery Company against Joseph Laev. From a judgment for plaintiff, the garnishee appeals. Reversed.

This is a garnishment proceeding. The plaintiff sued N. H. Anderson, alias Hans Anderson, on an open account, and at the time of the issuance of the summons garnished Laev. Laev answered, denying liability either to N. H. Anderson or to Hans Anderson, but alleged that he had in his possession 50 shares of stock in the Laev Lumber Company, a corporation, which belonged to Hans Anderson. This stock, by order of the court, was deposited with the clerk of the court pending the action. Trial of the garnishee action was had before the court, and at the opening thereof the garnishee moved to dismiss because no judgment against the defendant had been rendered in the original action, and no service of summons had been made on the defendant in the original action. The record in the original action was not introduced in evidence. At the close of the trial, the garnishee renewed his motion to dismiss because no judgment against Hans Anderson in the main action had been shown. This motion was overruled, and the court made findings to the effect that judgment had been rendered and docketed in the main action for $654.75 against the defendant, October 8, 1895, which date was prior to the trial of the garnishee action; that, when the defendant in the main action contracted the debt sued upon therein, he was known under the names both of N. H. Anderson and of Hans Anderson, and contracted the debt under the name of N. H. Anderson, although his proper name in fact was Hans Anderson; and that the property disclosed by the garnishee to be in his possession belonged to the said Hans Anderson,--and concluded that the plaintiff was entitled to judgment, that the certificates of stock aforesaid be sold by the sheriff, and that the plaintiff be paid the amount of his judgment out of the proceeds thereof. Exceptions were taken to all these findings, and from judgment in accordance with the findings the garnishee appeals.Timlin & Glicksman and C. W. Briggs, for appellant.

William W. Wight, for respondent.

WINSLOW, J. (after stating the facts).

Three claims are made by the appellant which it is necessary to discuss, viz.; (1) That the title of the main action does not disclose who the real defendant is; (2) that the judgment in the main action should have been introduced in evidence; and (3) that corporate stock cannot be reached by garnishment of the person in possession of the certificates.

1. The main defendant was sued by the name of “N. H. Anderson alias Hans Anderson.” The word “alias,” as here used, is simply an abbreviated form of the words “alias dictus,” meaning “otherwise called”; and where a person is known by two different names it seems a very proper way to designate him in legal proceedings, in order to avoid the danger of a misnomer or variance. And. Law Dict. tit. “Alias.” It was shown by the proof in this case that Anderson, the main defendant, used the name of N. H. Anderson as his own in contracting the debt sued on, while he was generally known among his associates as Hans Anderson. Apparently he was known indiscriminately either as N. H. or Hans. He had contracted the debt as N. H., but he held property as Hans, and as a measure of safety the plaintiff used both names in suing, in such manner as to indicate clearly that it was but one person who was sued. This was certainly a proper course. Kennedy v. People, 39 N. Y. 245.

2. The garnishment proceedings were...