Olson v. Gilbertson

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMARTIN
Citation239 Wis. 241,300 N.W. 918
PartiesOLSON v. GILBERTSON (COTHERMAN, Garnishee).
Decision Date02 December 1941

239 Wis. 241
300 N.W. 918

OLSON
v.
GILBERTSON (COTHERMAN, Garnishee).

Supreme Court of Wisconsin.

Dec. 2, 1941.


Appeal from a judgment of the Circuit Court for Crawford County; S. E. Smaley, Judge.

Action by Jane Olson, otherwise known as Mrs. Ole E. Olson, against Vernon Gilbertson and A. R. Cotherman, administrator of the estates of Eric E. and Julia Gilbertson, deceased, as garnishee to reach funds and property of defendant Gilbertson in garnishee's possession. From a judgment of dismissal, plaintiff appeals.-[By Editorial Staff.]

Affirmed.

[300 N.W. 919]

This was a garnishment action commenced May 22, 1940, by plaintiff-appellant against Vernon Gilbertson, defendant-respondent, and A. R. Cotherman as administrator of the estates of Eric E. Gilbertson and Julia Gilbertson, deceased, as garnishee.

In this action plaintiff sought to reach funds and property alleged to be in the possession and under the control of the garnishee as administrator of the estates of Eric E. and Julia Gilbertson, deceased, belonging to the defendant, Vernon Gilbertson, or in which he had an interest; and also to reach money alleged to be owing by the garnishee as administrator aforesaid to the defendant, Vernon Gilbertson, and have same applied on his indebtedness to the plaintiff. The defendant did not appear in the action. The garnishee answered, alleging that at the time he was served with the garnishee summons and complaint “he was then and is now in no manner and upon no account indebted to or under liability to the defendant unless an indebtedness or liability exist under the following facts and circumstances; ***”, which facts and circumstances are hereinafter referred to in the findings of fact. The plaintiff did not take issue with the answer of the garnishee or make any reply thereto.

Case was tried to the court. Findings were made in substance as follows: That the garnishee summons and complaint were served upon the garnishee on the 14th day of May, 1940; that Eric E. Gilbertson, a resident of Grant county, died intestate May 10, 1925, leaving surviving his widow, Julia Gilbertson, and certain other heirs; that no administration was had upon his estate until letters were issued to the garnishee on November 3, 1937; that the widow, Julia Gilbertson, died on March 3, 1939, and that letters of administration upon her estate were issued to the garnishee on April 5, 1939; that a stipulation was signed by all of the heirs of said Eric E. and Julia Gilbertson and filed in the county court of Grant county on May 13, 1940; that said stipulation was not signed or joined in by said administrator; that he was not a party to said stipulation; that said stipulation provides in part as follows:

“1. That as a full and complete settlement of every claim and share of every kind or nature whatsoever that Vernon Gilbertson may have or claim to have against the estates of Eric E. Gilbertson, deceased, or Julia Gilbertson, deceased, or the administrator of said estates or Edward Gilbertson or Henry Gilbertson or any or either of them, the said Vernon Gilbertson agrees to accept as his full share in said estates the sum of $1350.00. It is agreed that said sum shall be paid to the said Vernon Gilbertson by A. R. Cotherman as Administrator of the estate of Eric E. Gilbertson, deceased.

“5. That the said Vernon Gilbertson and wife, Della DiVall, Gus Gilbertson and wife and John Gilbertson and wife hereinbefore referred to agree to execute and deliver a deed to Edward Gilbertson, Henry Gilbertson, Oscar Gilbertson, Eli Gilbertson, Cora Hammond, Otho Gilbertson, Emma Neilson and Jane Olson to all of the real estate remaining in the estates of Eric E. Gilbertson, deceased, and Julia Gilbertson, deceased, and they do further agree to execute and deliver a bill of sale and an assignment to all of their interest in the personal property remaining in the said estates of Eric E. Gilbertson, deceased, and Julia Gilbertson, deceased, after the payments hereinbefore set forth shall have been made to the said Edward Gilbertson, Henry Gilbertson, Oscar Gilbertson, Eli Gilbertson, Cora Hammond, Otho Gilbertson, Emma Neilson and Jane Olson.”

That on May 14, 1940, the garnishee had in his possession and under his control only $2,390.22 belonging to the estates aforesaid and that at said time there were unpaid funeral expenses and unpaid expenses of administration amounting to $1,307.44, and that under the terms of the stipulation Vernon Gilbertson was to receive the sum of $1,350 and Della DiVall, the sum of $1,350; that at said time Vernon Gilbertson and wife had not executed or delivered the deed as provided for in said stipulation, nor a bill of sale or assignment of

[300 N.W. 920]

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4 practice notes
  • Wurth v. Affeldt
    • United States
    • United States State Supreme Court of Wisconsin
    • November 3, 1953
    ...In the opinion on motion for rehearing, in discussing the issue of whether certiorari could be maintained, the court stated, 239 Wis. 143, 300 N.W. 918: 'If his appointment was void, its validity could be attacked by certiorari by anyone who had such interest as entitled him to attack it. T......
  • Welch v. Fiber Glass Engineering, Inc.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 1966
    ...p. 702, sec. 196; Williams v. Smith (1903), 117 Wis. 142, 144, 145, 93 N.W. 464 (quoted with approval in Olson v. Gilbertson (1941), 239 Wis. 241, 246, 300 N.W. 918); also see Ward v. Commissioner of Internal Revenue (9th Cir. 1955), 244 F.2d 547, 552, and Hopping v. Hopping (1943), 233 Iow......
  • McClutchey v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...interest was not considered by the court. It is to be noted that the entertainment of the instant action is contrary to the holding [300 N.W. 918]of the court in the later case of State ex rel. Elliott v. Kelly, City Clerk, 154 Wis. 482, 143 N.W. 153. That case involved the payment to an of......
  • Tomczak's Estate, In re, No. 62
    • United States
    • United States State Supreme Court of Wisconsin
    • March 2, 1971
    ...usual sense is not available to a creditor in these circumstances, since the funds are in custodia legis. 1 Olson v. Gilbertson (1941), 239 Wis. 241, 300 N.W. [50 Wis.2d 321] It is apparent that the power to interfere with the distribution or possession of funds in the hands of an officer o......
4 cases
  • Wurth v. Affeldt
    • United States
    • United States State Supreme Court of Wisconsin
    • November 3, 1953
    ...In the opinion on motion for rehearing, in discussing the issue of whether certiorari could be maintained, the court stated, 239 Wis. 143, 300 N.W. 918: 'If his appointment was void, its validity could be attacked by certiorari by anyone who had such interest as entitled him to attack it. T......
  • Welch v. Fiber Glass Engineering, Inc.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 1966
    ...p. 702, sec. 196; Williams v. Smith (1903), 117 Wis. 142, 144, 145, 93 N.W. 464 (quoted with approval in Olson v. Gilbertson (1941), 239 Wis. 241, 246, 300 N.W. 918); also see Ward v. Commissioner of Internal Revenue (9th Cir. 1955), 244 F.2d 547, 552, and Hopping v. Hopping (1943), 233 Iow......
  • McClutchey v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...interest was not considered by the court. It is to be noted that the entertainment of the instant action is contrary to the holding [300 N.W. 918]of the court in the later case of State ex rel. Elliott v. Kelly, City Clerk, 154 Wis. 482, 143 N.W. 153. That case involved the payment to an of......
  • Tomczak's Estate, In re, No. 62
    • United States
    • United States State Supreme Court of Wisconsin
    • March 2, 1971
    ...usual sense is not available to a creditor in these circumstances, since the funds are in custodia legis. 1 Olson v. Gilbertson (1941), 239 Wis. 241, 300 N.W. [50 Wis.2d 321] It is apparent that the power to interfere with the distribution or possession of funds in the hands of an officer o......

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