Thoen v. Harnstrom

• Decision Date: 11 January 1898
• Citation: 73 N.W. 1011,98 Wis. 231
• Parties: THOEN v. HARNSTROM ET AL.
• Court: Wisconsin Supreme Court

98 Wis. 231

73 N.W. 1011

THOEN

v.HARNSTROM ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Lauritz Thoen against S. Harnstrom and others. From an order denying defendant's motion to dismiss the garnishee proceedings, he appeals. Affirmed.

Plaintiff and the principal defendant resided in Chicago. The former sued the latter in the circuit court for Dane county, and as incidental thereto commenced this garnishee action. The affidavit which was the foundation of the garnishee proceeding was in the usual form, stating, among other things, that plaintiff verily believed that the defendant was not possessed of property liable to execution, sufficient to satisfy the plaintiff's claim. After the service of garnishee process the principal defendant filed an undertaking pursuant to the statute, for the purpose of releasing the garnishee. Thereafter, on affidavit showing that such principal defendant was the owner of a large amount of property in the city of Chicago, liable to execution, and that when he gave the undertaking to release the garnishee he did not know that the cause of action against him did not arise in the state of Wisconsin, motion was made to dismiss the garnishee action and return such undertaking. The motion was denied, and from the order entered this appeal was taken.J. H. Eggen, for appellant.

Ben E. Wait, for respondent.

MARSHALL, J. (after stating the facts).

Section 2771, Rev. St., provides that “the defendant may at any time after the commencement of the action and before judgment, file with the clerk of the court an undertaking, * * * to pay to the plaintiff the amount of the judgment, with all costs that may be recovered against such defendant in the action, not exceeding a sum specified” in such undertaking; and that, on compliance with the statutory requisites in the matter, the garnishee shall be discharged and the garnishee proceedings deemed discontinued. So, upon the service of the garnishee summons upon the garnishee defendant, the appellant had his election to give the bond provided for by statute, and thereby supersede the garnishee proceedings, or to move the court for a dismissal of such proceedings, under the rule in Orton v. Noonan, 27 Wis. 272, and German American Bank v. Butler-Mueller Co., 87 Wis. 467, 58 N. W. 746, if he deemed the facts sufficient to invoke the implication of such rule. The two remedies were inconsistent, therefore, obviously, the appellant could not have both. He made his election to give the undertaking, and thereby the garnishee proceedings were, by force of the statute, discontinued and at an end. It is not perceived how the remedy for the dismissal of the proceedings could be resorted to under such circumstances in any event, but certainly not till the appellant had been relieved on some...