McCormick Harvesting Machine Co. v. Reed

Garnishment: Certiorari: Appeal. An appeal cannot be taken by the main defendent in a garnishee action after the garnishee defendant has sued out and served a common-law writ of certiorari in the same action.

APPEAL from the Circuit Court for Booh County. This was a garnishee proceeding in justice’s court against S. L. James in aid of an execution upon a judgment in favor of the McCormick Harvesting Machine Company against Mantrice Reed. Judgment was rendered in the garnishee proceedings against the garnishee, January 5, 1892, for $178.46 and costs. On the 23d day of January, 1892, the garnishee defendant, James, sued out a writ of certiorari from the circuit court, in the usual form, alleging loss of jurisdiction by the justice. The writ was served upon the justice on the same day, and thereafter on said day the defendant Reed filed a notice of appeal with the justice. The plaintiff moved to dismiss the appeal in the circuit court on the ground that no appeal could be taken after the writ of certiorari had been served. The motion was overruled, and from the order overruling the motion plaintiff appeals. The certiorari action was heard in the circuit court, and judgment rendered affirming the justice’s judgment, but upon appeal to this court, at the present term, that judgment was reversed on the ground that the justice had lost jurisdiction, and the cause was remanded to the circuit court with directions to reverse the judgment of the justice. McCormick H. M. Co. v. James, 84 Wis. 600.