Eau Claire National Bank v. Chippewa Valley Bank

Cassoday, C. J.

It is contended by counsel that the Chippewa Yalley Bank, as a matter of pure accommodation, received the papers mentioned in the foregoing statement from one party, to be delivered to another, upon payment by that other of a sum of money in exchange for the papers, the bank having no interest whatever in the transaction, not even making a charge for the services. In the principal case relied upon in support of such contention, “the answers of the supposed trustee” disclosed the facts that:

“He had been in treaty with the defendant for a cow, to be purchased if approved. No bargain had been completed, and before the time of trying the cow had expired, and before the service of the plaintiffs writ, he had notified the defendant that he should not purchase the cow and had deliv *525 ered ber to liim, but tlie defendant left her in his possession, where she was at the time of the service of the plaintiff’s writ.” Staniels v. Raymond, 4 Cush. 314 , 315.

Upon such facts it was there held, in effect, that the mere possession by the garnishee was insufficient to make him liable as the trustee of the owner. It is true, as claimed by counsel, that that case has frequently been cited with approval by this court. Winterfield v. M. & St. P. R. Co. 29 Wis. 589, 592 ; Bates v. C., M. & St. P. R. Co. 60 Wis. 296, 301 , 19 N. W. 72 ; Gleason v. South Milwaukee Nat. Bank, 89 Wis. 534, 536 , 62 N. W. 519 ; Gore v. Brucker, 94 Wis. 65, 69 , 68 N. W. 396 ; Hussa v. Sikorski, 101 Wis. 131, 135 , 76 N. W. 1117 . In Bates v. C., M. & St. P. R. Co. the attempt washnade by garnishment process, served in Milwaukee at 5 a. m., to reach a carload of hogs while in actual transit from Lyons in Walworth county to Chicago, and which was delivered to the consignee at 7:20 o’clock the same morning. In the Gore Case, supra, an agent of the owner of a chattel mortgage who had taken possession of the property pursuant to the terms of the mortgage, and as such agent held the same for his principal, was not, by reason of such possession, subject to garnishment in an action against the mortgagor, even though the mortgage was void as against the mortgagor’s creditors. As stated in that case:

“The plaintiff was at perfect liberty to attach the property so in the custody of Brucker, since the same was open and tangible, and, in fact, inspected by the plaintiff’s general manager. Had the plaintiff so attached, Lapidus [the owner of the mortgages] would have had an. opportunity to assert his right as mortgagee, and to have the same determined in a proper form,”

In the Hussa Case, cited, the mortgagor put the money in the hands of an agent to be paid over to the mortgagee in satisfaction of the negotiable note which the mortgage had been given to secure, and it was held that such agent was merely an agent of the mortgagor to transmit the money from him *526 to tbe mortgagee, wbo was tbe principal defendant in tbe action, “and was not a debtor of tbe mortgagee, nor liable as bis gamisbee.” In tbat case tbe gamisbee answered tbat be was not indebted to and tbat be bad no money or property of tbe defendant in bis possession, except $510, wbicb sum be was informed and believed belonged to bim, but wbicb was claimed by bis wife, and be asked tbat sbe be required to in-terplead, as prescribed by statute (sec. 2767, Stats. 1898), and sbe was thereupon brought into tbe action and made answer, and tbe question of tbe ownership of tbe money was determined upon such answer.

Tbe case at bar differs essentially in its facts from any of tbe cases thus relied upon. In this case tbe note and mortgage were payable to Mr. Friend. lie assigned them in writing to Ms wife. Tbe note, mortgage, and assignment, with a satisfaction of tbe same signed by Mrs. Friend, were placed, in tbe Chippewa Valley Bank for collection. Tbe mortgagor caused a check for tbe amount due on tbe note and mortgage, and payable to tbe order of tbe Chippewa Valley Bank, to be delivered to tbat bank in payment of tbe note and mortgage. In tbat condition of things tbe garnishee summons was served. Tbe Chippewa Valley Bank thereupon drew tbe money on tbe check and paid it over to Mrs. Friend, and delivered tbe other papers to tbe mortgagor, notwithstanding tbe allegation in tbe garnishee papers tbat tbe note and mortgage and tbe money due thereon were tbe prop•erty of and belonged to Mr. Friend, and tbat the plaintiff would so maintain notwithstanding its answer. Tbe real controversy was whether such property belonged to Mr. or Mrs. Friend. Instead of submitting tbe facts to tbe court and thus relieving itself from all liability, it assumed tbat such property belonged to Mrs. Friend, and hence denied being indebted to or having in its possession or under its control any property whatever belonging to Mr. Friend.

*527 Our statute prescribing tbe liability of a garnisliee is mucb broader than the Massachusetts statute, and declares that:

“From the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession or under his control belonging to the defendant or in which he shall be interested to the extent of his right or interest therein, and of all debts due or to become due to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits, and effects held by a conveyance or title void as to the creditors of the defendant shall be embraced in such liability.” Sec. 2768, Stats. 1898.

The language thus quoted has been in force ever since the revision of 1878. The last sentence thus quoted was, by way of amendment to the prior statutes, added by that revision, so as “to expressly cover property held in fraud of creditors.” Revisers’ Notes, 1878. This court has repeatedly declared that the words thus added, in connection with other provisions of the statutes cited, “clearly evince a purpose to make the remedy by garnishment as effectual in reaching nonleviable assets, things in action, evidences of debt, credits, and effects, and in fact any property held by any sort of conveyance or title void as to the creditors of the principal defendant, as the old creditors’ bill in chancery. Such is the logical result of previous decisions of this court.” La Crosse Nat. Bank v. Wilson, 74 Wis. 391, 398 , 43 N. W. 153 ; Bloodgood v. Meissner, 84 Wis. 452, 456 , 54 N. W. 772 ; Bragg v. Gaynor, 85 Wis. 468, 485 , 55 N. W. 919 ; Spitz v. Tripp, 86 Wis. 25, 28 , 56 N. W. 330 ; Jones v. Alford, 98 Wis. 245, 251 , 73 N. W. 1012 ; Dahlman v. Greenwood, 99 Wis. 163, 167 , 74 N. W. 215 ; Stannard v. Youmans, 100 Wis. 275, 279, 280 , 75 N. W. 1002 . The case presented comes within the comprehensive language of the statute quoted.

Counsel argues that to hold a bank liable as such garnishee *528 is a great annoyance and obstruction to business. But tbat is a question for tbe legislature, and not for tbe courts.

2. It is true tbe two garnishees were severally proceeded against — Mrs. Eriend, as claiming to be tbe owner of the-note and mortgage and tbe proceeds of tbe check; and tbe bank, as the receiver and disposer of tbe property as mentioned. In such case tbe statute expressly declares tbat “any number of garnishees may be embraced in tbe same affidavit and tbe summons” therein “provided for.” Sec. 2753, Stats. 1898. No joint judgment was rendered in tbe action. No interpleader was necessary, since both claimants of tbe property were parties to tbe proceedings — Mrs. Eriend as garnishee; and Mr. Friend as principal defendant. Look v. Brackett, 74 Me. 347 .

3. Error is assigned because tbe Chippewa Talley Bank was adjudged liable for interest on tbe $844.88 from tbe date of garnishment, May 28, 1902, to tbe entry of judgment in tbe gamishee proceeding, April 11, 1904. Tbe judgment in tbe original action was not rendered until April 18, 1903. Until that time tbe plaintiff bad no right to tbe money. Tbe statute quoted only made tbe garnishee liable for tbe amount of moneys, etc., in its possession at tbe time of garnishment, but is silent as to interest. As soon as the judgment was entered in tbe original action, however, tbe plaintiff, as shown by tbe result of tbe trial, was entitled to tbe amount so found to be in tbe possession of tbe garnishee. For any delay after tbat time tbe plaintiff is entitled to compensation by way of damages for such delay. J. I. Case P. Works v. Niles & Scott Co. 107 Wis. 9, 17 , 82 N. W. 568 ; McCall Co. v. Icks, 107 Wis. 232, 241 , 83 N. W. 313 ; Hansen v. Allen, 117 Wis. 61, 66 , 93 N. W. 805 .

4. There was no error in tbe trial court allowing costs against tbe garnishee. Upon tbe findings of tbe court tbe statute expressly authorized judgment for costs against tbe garnishee. Sec. 2772, Stats. 1898.

*529 By the Oourt. — Tbe judgment of tbe circuit court is hereby modified and reduced so as to entitle tbe plaintiff only to recover judgment for $844.88, and interest thereon from April 18, 1903, and, as so modified and reduced, tbe same is affirmed. No costs are allowed in this court to either party, except tbe plaintiff must pay tbe clerk’s fees.