Olson v. Gilbertson
| Decision Date | 02 December 1941 |
| Parties | OLSON v. GILBERTSON (COTHERMAN, Garnishee). |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
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.
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:
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 their interest in the personal property remaining in the estate of Eric E. or Julia Gilbertson, deceased; that at the time of service of the garnishee summons no final account in either of said estates had been rendered or filed in the county court; that no order of distribution or assignment of either of said estates had been rendered; that the property in the bands of the garnishee was in his hands as administrator of the estates of Eric E. and Julia Gilbertson, both of which were then in the process of settlement.
As conclusions of law the court found that the garnishee was not at the time of the service of the garnishee summons and complaint in any manner indebted to or under liability to the defendant, Vernon Gilbertson; that said garnishee then had in his possession or under his control no real estate and no personal property belonging to the defendant or in which he had any interest; that the property in his hands as administrator was not subject to garnishment. From a judgment entered January 6, 1941, dismissing the complaint on the merits with costs, plaintiff appeals.
Graves & Earll, of Prairie du Chien, for appellant.
Harry E. Carthew, of Lancaster, for respondent.
The facts, which are not in dispute, clearly sustain the trial court's findings: (1) That the garnishee had no property, effects or credits in his possession or under his control belonging to the defendant, Vernon Gilbertson; (2) that the garnishee was not indebted to or under liability to the defendant unless it was by reason of property held by him as administrator of the estates of Eric E. and Julia Gilbertson in the process of administration, in which no final account had been rendered and in which the administrator (garnishee) had not sufficient funds to pay funeral expenses, expenses of administration, and to pay the defendant and his sister, Della DiVall, each the sum of $1,350; (3) that the administrator was not a party to the agreement set out in the foregoing statement of facts, that under the terms of said agreement nothing became due to defendant until he had executed and delivered deeds of real estate and assignments of his interest in both estates to other persons than the administrator.
[1] Upon the undisputed facts we think it clear that the property in the hands of the administrator was not subject to garishment. In J. I. Case T. M. Co. v. Miracle, 54 Wis. 295, 11 N.W. 580, an executor was garnisheed in aid of an execution issued on a judgment in favor of the plaintiff against defendant Miracle....
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