LeHmann v. Deuster

• Decision Date: 02 February 1897
• Citation: 70 N.W. 170,95 Wis. 185
• Parties: LEHMANN v. DEUSTER ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 185

70 N.W. 170

LEHMANN

v.DEUSTER ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Garnishment proceedings by Henrietta Lehmann against Hubert Deuster, defendant, and the Milwaukee Street-Railway Company, garnishee. John V. Farwell & Co. and other garnishee creditors were made parties, as was also Caroline A. Deuster, who claimed as assignee of the principal defendant. From a judgment determining the priorities of the different claims, plaintiff and defendants Caroline A. Deuster and Farwell & Co. appeal. Affirmed.

This is a garnishee action. The facts were largely stipulated, and are as follows: On the 24th day of May, 1893, the main defendant, Hubert Deuster, obtained a verdict for $1,500 against the garnishee defendant, the Milwaukee Street-Railway Company, in an action to recover for personal injuries. Judgment was not entered on said verdict until the 20th day of June following. That judgment was affirmed by this court on appeal in January, 1895 (61 N. W. 766); and on the 25th day of May, 1895, the garnishee paid the sum, by depositing the amount thereof in court, amounting at that time to $1,751.51. On the 16th of March, 1893, the plaintiff, Henrietta Lehmann, commenced an action for unpaid rent against the defendant Deuster, and, on the 25th of May following, commenced another action for another installment of unpaid rent. In connection with these two actions the plaintiff commenced garnishee proceedings against the street-railway company, by the service of the necessary papers, on the 25th day of May, 1893, which was the day following the rendition of the verdict in the case of Deuster against the railway company. The garnishee answered, denied liability, and subsequently amended its answer and set forth the judgment. On the 22d day of June, 1893, two days after the rendition of the judgment in the case of Deuster against the railway company, the intervening defendants, Farwell and others, composing the firm of Farwell & Co., commenced an action against Deuster for the recovery of more than $800, and served garnishee process on the railway company. The garnishee answered, and set up the fact of the recovery of the Deuster judgment, and also the other garnishments above referred to. On the 6th day of December, 1894, the intervening defendants, Sweet, Dempster & Co., commenced an action against Deuster to recover more than $400; and on the 14th day of January, 1895, they also commenced garnishment proceedings against the railway company, in which the garnishee duly appeared and answered in substantially the same form as in the Farwell case. After the affirmance of the Deuster judgment against the street railway company in this court, all of the garnishee creditors obtained judgments against Deuster. The plaintiff's (Lehmann's) judgment amounted to nearly $500; Farwell & Co.'s judgment, to nearly $1,000; Sweet, Dempster & Co.'s, to a little more than $400. All of the garnishing creditors above named were brought into this action, by proper proceedings, after the garnishee defendant had paid into court the amount of the judgment obtained against it by Deuster; and about the same time, also, one Caroline A. Deuster, the wife of Hubert Deuster, was made a party to these proceedings on her own petition,--she claiming to own the right of action or judgment against the street-railway company recovered by her husband, by virtue of an assignment of the same which was made and delivered to her by her husband on the 25th day of May, 1893, being the same day the verdict was rendered, and before any garnishment papers had been served. The parties agreed that one-third of the moneys paid into court by the street-railway company belonged to Messrs. Austin & Hamilton, the attorneys of Hubert Deuster in that litigation, and accordingly the amount so agreed to be due was paid to that firm; leaving in the hands of the clerk of the superior court the sum of $1,113.08, which is the subject of this litigation. The court found substantially the facts as previously stated, and found that Hubert Deuster owed his wife, Caroline A. Deuster, at the time of the attempted assignment of his right of action, the sum of $622, and that she had the first lien to that amount; that the defendants John V. Farwell & Co. had the next lien; and, there not being sufficient funds to pay the entire amount of the Farwell claim, no disposition was made of the claim of Sweet, Dempster & Co. It was further adjudged that at the time of the service of the plaintiff's garnishee process the garnishee was not indebted to Hubert Deuster in any sum. From this judgment the plaintiff, Henrietta Lehmann, appealed, the defendant Carolina A. Deuster appealed, and the defendants John V. Farwell & Co. appealed.

Sylvester, Scheiber, Riley & Orth, for appellants.

Haring & Frost and Julius E. Roehr, for respondent.

WINSLOW, J. (after stating the facts).

An action for personal injuries resulting from negligence was tried, and a substantial verdict rendered for the plaintiff. Before judgment on the verdict, the plaintiff assigned his right of action to his wife; and later, upon the same day, and still before the entry of judgment, garnishee process was served on the defendant, at the suit of one of the plaintiff's debtors. The crucial questions in the case are simply (1) whether, before judgment, the cause of action was assignable; and (2) whether, before judgment, the defendant could be effectively garnished.

1. If the cause of action survived, it was assignable. Webber v. Quaw, 46 Wis. 118, 49 N. W. 830. It is well understood that such an action does not survive at common law; hence the question is whether it survives under section 4253, Rev. St., as amended by chapter 280, Laws 1887. That section reads as follows, the...