Russell v. Ralph
| Decision Date | 03 November 1881 |
| Citation | 53 Wis. 328,10 N.W. 518 |
| Parties | RUSSELL v. RALPH, GARNISHEE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from county court, Winnebago county.Crozier & Tyrrell and G. W. Burnell, for appellant.
Jackson & Thompson, for respondent.
The statutes require that an affidavit of garnishment in justice court shall, among other things, state “that the affiant has good reason to believe that some person, (meaning him,) is indebted to the defendant, or has personal property in his possession or under his control, belonging to the defendant,--or, when there is more than one defendant, to any or either of them,--not by law exempt from sale on execution,” etc. Section 3716, Rev. St. Of course, such affidavit must substantially comply with this statutory requirement or the justice acquires no jurisdiction of the subject-matter of the proceeding. Steen v. Norton, 45 Wis. 412;Rasmussen v. McCabe, 46 Wis. 600. Here the affidavit, among other things, states “that this affiant verily believes that A. L. Ralph is indebted to, or has property, credits, moneys, and effects in his possession or under his control, belonging to, one of these defendants, L. P. Carey, and that such defendants had not property liable to execution sufficient to satisfy the plaintiff's demand; and that such indebtedness or property are, to the best of the knowledge and belief of this affiant, not by law exempt from seizure or sale upon execution,” etc.
The reading of the affidavit suggests the form used for garnishment in the circuit court under section 2753, Rev. St., and was probably intended as a compliance with it. It seems to be conceded, and the authorities indicate, that the affidavit here would have been sufficient to have given a circuit court jurisdiction. Beck v. Cole, 16 Wis. 95;Orton v. Noonan, 27 Wis. 572. Whether it was sufficient to give the justice's court jurisdiction is a more difficult question. By retaining the disjunctive “or,” contained in the statute, it is insisted that the affidavit fails to state whether Ralph was indebted to Carey or had property in his possession belonging to Carey. In attachment proceedings under a similar statute it was held, in Morrison v. Fake, 1 Pinney, 133, that such use of the disjunctive “or” was no defect. Miller, J., giving the opinion of the court, said: “We are not disposed to confine the party to the use of one of the words, ‘remove,’ ‘convey,’ or ‘dispose,’ but he may use one or all, at his pleasure; also, the words ‘property,’ or ‘effects.’ ” The same was reasserted by Dunn, C. J., in Merrill v. Law, 1 Pinney, 224. To the same effect is Kleuk v. Schwalm, 19 Wis. 111. In Miller v. Munson, 34 Wis. 579, the affidavit was in the disjunctive, but it was not held defective on that ground; and in Everdell v. Ry. 41 Wis. 395, the disjunctive “or” was used, and the affidavit was held to be sufficient. See, also, Mairet v Marriner, 34 Wis. 582.
We conclude that an affidavit in a garnishment proceeding is not defective merely because the disjunctive is used with the words, “is indebted to or has property,” etc.
Again, it is urged that the word “property,” as used in the affidavit, might be applied to real estate, in which case the justice would not have jurisdiction to proceed, and that, in the absence of certainty, it must be presumed that it was so intended. But property is a generic term of extensive application. It includes real and personal estate, and the right and title to and interest in the same. Subdivisions 3, 4, § 4972, Rev. St. Had the person making the affidavit designed here to apply it to real estate he would naturally have followed it with terms applicable to real estate, as well as the words, “credits, moneys, and effects,” which seem to be a mere enumeration of the kind or class of property which he intended to include. It is a universal rule of construction “that general words in any instrument or statute are strengthened by exceptions and weakened by enumeration.” Black, C. J., in Sharpless v. Philadelphia, 21 Pa. St. 161. But, even if it was intended to apply to real estate, yet, since the affidavit states that “Ralph is indebted to, or has property, credits, moneys, and effects,” it would pretty clearly indicate that he was either indebted to Carey, or had “credits, moneys, and effects,” as well as real estate. The mere presence of the word “property,” therefore, should not vitiate the affidavit if it is otherwise sufficient.
Are the words of the statute, ...
To continue reading
Request your trial
-
Johnson v. Emery
...[S. D.], 59 N.W. 1027; Klenk v. Schwalm, 19 Wis. 124; Parsons v. Stockbridge, 42 Ind. 121; Tessier v. Ingelhart, 18 Neb. 167; Russell v. Ralph, 53 Wis. 328; McCraw v. Welch, 2 Colo. 284; Conrad v. McGee, Yerg. [Tenn.] 428; Drake on Attach., 102; Wood v. Wells, 65 Ky. 197; Societe, etc., v. ......
-
Town of Checotah v. Town of Eufaula
...2 N.E. 808; Lowrie v. Meldrum Co. (C. C.) 124 F. 761; Lineberger et al. v. Tidwell et al., 104 N.C. 506, 513, 10 S.E. 758; Russell v. Ralph, 53 Wis. 328, 10 N.W. 518; Schwartz et al. v. Allen et al. (Super. Buff.) 7 N. Y. Supp. 5; Stanhope et al. v. Dodge et al., 52 Md. 483. ¶11 The correct......
-
Town of Checotah v. Town of Eufaula
... ... 808; Lowrie v. Meldrum Co. (C. C.) 124 F. 761; ... Lineberger et al. v. Tidwell et el., 104 N.C. 506, ... 513, 10 S.E. 758; Russell v. Ralph, 53 Wis. 328, 10 ... N.W. 518; Schwartz et al. v. Allen et al. (Super. Buff.) 7 ... N.Y.S. 5; Stanhope et al. v. Dodge et al., 52 Md ... ...
- Allen v. Murray