Plumbers' Woodwork Co. v. Merchants' Credit & Adjustment Bureau

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Plumbers' Woodwork Co. v. Merchants' Credit & Adjustment Bureau, 199 Wis. 466, 226 N.W. 303 (Wis. 1929)
• Decision Date: 24 June 1929
• Parties: PLUMBERS' WOODWORK CO. v. MERCHANTS' CREDIT AND ADJUSTMENT BUREAU ET AL.

199 Wis. 466

226 N.W. 303

PLUMBERS' WOODWORK CO.

v.MERCHANTS' CREDIT AND ADJUSTMENT BUREAU ET AL.^a1

Supreme Court of Wisconsin.

June 24, 1929.

Appeal from a judgment of the Circuit Court for Brown County; Edgar V. Werner, Circuit Judge. Reversed.

This action was brought by the plaintiff, Plumbers' Woodwork Company, against the defendants, Merchants' Credit & Adjustment Bureau and Frank J. Taddy, sheriff of Kewaunee county, to restrain said defendants from enforcing a judgment rendered against the Plumbers' Woodwork Company and in favor of Merchants' Credit & Adjustment Bureau, in garnishee proceedings. From a judgment in favor of the plaintiff, the defendants appeal.

It appears that on the 2d day of October, 1925, judgment was rendered in the circuit court for Brown county in favor of the defendant Merchants' Credit & Adjustment Bureau against one Albert Vania for the sum of $560.83; that on the 2d day of November, 1925, an execution against the property of said defendant Albert Vania, then residing in Kewaunee county, was issued out of the circuit court for Brown county to the sheriff of said county; that on the 3d day of November, 1925, the Merchants' Credit & Adjustment Bureau caused to be served on the Plumbers' Woodwork Company, a corporation, with its principal place of business in Kewaunee county, a garnishee summons in aid of said execution; that said Albert Vania was a common laborer in the employ of said Plumbers' Woodwork Company. The garnishee summons was in the regular form, requiring said Plumbers' Woodwork Company to answer within 20 days after the service of the summons whether it was indebted to the said Vania, and that in case of failure so to do it would be liable to further proceedings according to law. There is no question that this summons was properly served on the Plumbers' Woodwork Company. That company paid no attention to the garnishee summons, and never made any answer thereto.

On the 18th day of March, 1926, judgment was entered by default against the Plumbers' Woodwork Company in said proceedings in the circuit court for Brown county for the full amount due and owing by said Albert Vania upon the judgment rendered against him in favor of the Merchants' Credit & Adjustment Bureau. On March 23, 1926, the attorneys for the Merchants' Credit & Adjustment Bureau wrote the Plumbers' WoodworkCompany, at Algoma, as follows: “We have taken judgment against you by default in this matter and would appreciate your early advice as to when we may expect payment of this judgment.” In acknowledgment of this letter, the Plumbers' Woodwork Company wrote the attorneys for the Merchants' Credit & Adjustment Bureau as follows: “Your letter of the 23d received and contents noted. I just returned from Chicago and found your letter. I want to know just what you mean by writing this kind of a letter to me. You state that you have taken judgment against me, or the Plumbers' Woodwork Company. What right have you to take judgment against me, or the Plumbers' Woodwork Company, because Albert Vania owes you a bill? You never attached his wages or asked me to pay it, and, even if you did attach me, I would not pay it, because he has nothing coming to him. He is in debt to me the biggest share of the time, but he does not owe me much, and if you had come here and asked me to help you out, I think that I could have arranged it so that he would have paid his bill. Hoping this will be satisfactory to you, I remain, yours very truly, Plumbers' Woodwork Company, S. H. Newman, Pres.”

The attorneys for the judgment creditor did not answer this letter, neither did they do anything further in the matter until the expiration of one year from the date of their letter, informing Plumbers' Woodwork Company of the entry of the judgment. It is conceded that this was done in the hope or expectation that the Plumbers' Woodwork Company would let the year run within which relief from the judgment might be granted under section 269.46, St. 1927. Neither did the Plumbers' Woodwork Company do anything further with reference to the matter. It made no effort to ascertain whether in truth and in fact a judgment had been rendered against it, or to have the judgment opened up.

On March 31, 1927, the judgment was docketed in Kewaunee county, and in May, 1927, an execution was issued thereon and delivered to Frank J. Taddy, sheriff of Kewaunee county, when Plumbers' Woodwork Company brought this action to restrain the Merchants' Credit & Adjustment Bureau and said sheriff from enforcing said judgment. The trial court rendered judgment enjoining the enforcement of said judgment, from which judgment the defendants bring this appeal.

Kittell, Jaseph, Young & Everson, of Green Bay, for appellants.

North, Parker, Bie, Duquaine, Welsh & Trowbridge, of Green Bay (Samuel D. Hastings, of Green Bay, of counsel), for respondent.

OWEN, J.

No question is raised concerning the validity of the garnishee judgment. The commencement of this action in equity must be construed as a concession that the time has expired within which the court is authorized to relieve a party from a judgment “through his mistake, inadvertence, surprise or excusable neglect,” under the provisions of section 269.46, St. 1927. The question to be considered, therefore, is whether under the circumstances here presented a court of equity may or should enjoin the enforcement of this judgment.

The judgment was rendered upon the default of the garnishee. This was in accordance with the provisions of section 267.10, St. 1927, which provides that, “if any garnishee, having been duly summoned, shall fail to serve his affidavit as required in the preceding sections the court may render judgment against him for the amount of the judgment which the plaintiff shall recover against the defendant in the action for damages and costs, together with the costs of such garnishee action.” The entry of the garnishee judgment was not marked by unseemly haste. The garnishee summons was served November 3d, and judgment against the garnishee entered the following March 18t...