Southwestern Land Co. v. Ellis , 104 Wis. 445 ( 1899 )

Cassoday, C. J.

This action was commenced against the defendant M. Swihart on or about June 25,1897, to recover $601.30 and interest due upon a promissory note, upon which judgment was subsequently recovered for $654.88 damages and costs. At or about the time of its commencement a garnishee summons therein was served upon the respective members of the law firm of Jenkins & Jenkins. That firm,, as such garnishees, answered to the effect that they were not in any manner nor upon any account indebted or under liability to Swihart, and did not have in their possession or under their control any real estate, nor any personal property, effects, or credits of any description whatever, belonging to Swihart, or in which he had any interest, and were in no manner liable as garnishees in this action, except as. they might be held liable upon the following facts, to wit:

On April 30, 1897, an action which had'been commenced in November, 1893, was still'pending in the circuit court for Chippewa county, in which Mr. Swihart was plaintiff and U. A. Harless and several others were defendants, and in which the defendant Ellis was the attorney for Swihart,. and the. garnishees, Jenkins & Jenkins, were attorneys for Harless and others. On April 30, 1897, the parties to that action, through their attorneys,, agreed to settle the same,, and accordingly entered into a stipulation to the effect that — -whereas all the material facts- in the action were at issue and all the claims made by the plaintiff therein were denied by the defendants, and whereas the parties thereto, had other matters of dispute and differences between them, involving the right by the plaintiff to the timber on, the lands described, as well as a judgment for- deficiency against Swi-hart on the foreclosure of a certain, mortgage and other-matters of difference between them which should be settled and compromised, and the defendants who had appeared therein were willing to- pay in compromising, settling, discharging, and satisfying such differences and disputes, and upon the delivery of the releases, satisfaction, deeds, and discharges therein mentioned, the sum of "$800 to settle and compromise the same — U. A. Harless and S. P. Grindle-should become the owners of the lands described in accordance with the patent issued to them by the state, and were entitled to a decree of the court affirming their title; that the taxes for the years 1894 and 1895 theretofore paid by Swihart thereon, amounting to $47.30, be paid back to him out of the $800; that the balance thereof, to wit, $752.70, be paid to Swihart’s attorney, J. F. Ellis, upon the delivery of a proper release or satisfaction releasing the lands described from a certain mortgage given by Swihart and wife to the-/Southwestern Land Company, June 12, 1894, and recorded, and the delivery of the deeds, tax receipts for the taxes for 1894 and 1895, and the discharges therein mentioned; that the claim of Swihart to all the timber on the lands described be, and the same was thereby, released, satisfied, and discharged; that the judgment for the deficiency on the foreclosure in favor of Harless and Grindle against' Swihart,, dated" March 5,1896, for $103.40, be satisfied and discharged of record; that Swihart and wife should execute and deliver to U. A. Harless, and S. P. Grindle- a quitclaim deed in due form to certain lands-therein described; thatathn claims for damages by either party against the other be, and the same were thereby, satisfied and settled in full; that all claims for damages made by Swihart therein against U. A. Harless and others, or any of them, for and on account of the matters and things alleged in the complaint therein be, and the same were thereby, satisfied and discharged; and that the decree provided for by such stipulation to be entered therein should be without costs 'to either party.

Said answer further stated that May 15, 1897, U. A. Harless deposited with Jenkins & Jenkins $752.70, to be paid to J. F. ElUs upon the delivery of a proper release or satisfaction of the Southwestern Land Company of the mortgage mentioned in such stipulation, and the delivery of the deeds, releases, tax receipts, etc., mentioned therein; that such tax receipts were delivered to U. A. Harless May 15,1897; that the quitclaim deed mentioned was delivered to Jenkins & Jenkins, for U. A. Harless, May 15, 1897, and the satisfaction of the mortgage mentioned was sent by J. F. EUis to Jenkins & Jenkins by mail from Eau Claire June 22, 1897, and was returned by Jenkins & Jenkins to J. F. Ellis June 23, 1897, with a letter from them calling his attention to a mistake in such satisfaction and inclosing a blank satisfaction of such mortgage to be executed by the Southwestern Land Company; that at the time of such service of the garnishee summons herein Jenkins & Jenkins had not received such satisfaction, or any other satisfactidn, of that mortgage; that J. F. Ellis claims the $752.70 under and by the terms of the stipulation, and notified Jenkins & Jenkins that he had the satisfaction of the mortgage which Jenkins & Jenkins had prepared, and sent to him June 23, 1897, properly executed and reády to be delivered upon payment of the amount named; that the postofifice address of J. F. Ellis was and is Eau Claire; that May 15, 1897, Jenkins & Jenkins gave to J. F. Ellis a memorandum on the foot of such stipulation to the effect that May 15,1897, U. A. Harless had deposited with them the $752.70 to be paid to J. F. Ellis pursuant to the stipulation upon the delivery of a proper release or satisfaction of the mortgage mentioned, and the delivery of the deeds, releases, tax receipts, etc., mentioned therein; that the garnishees, being in doubt respecting their liability as such garnishees therein, set forth all the facts and circumstances respecting the same, and submitted to the court the question of their liability as garnishees in this action.

On August 31, 1897,0. L. Allen, attorney for the plaintiff in this action, made an affidavit stating, in substance, the commencement of the action; that the garnishees had answered, giving copies of such answers; that the $752.70 in the hands of Jenkins & Jenkins was claimed by J.F. Ellis, stating his name and residence and the nature of his claim as made by him,— asking that Ellis be interpleaded in the garnishee action in the place of Jenkins & Jenkins. On September 9, 1897, on such affidavit of Allen, and such answer of the garnishees, and the records in the action, the court ordered J. F. Ellis to be interpleaded in the garnishee action; that he be served with a copy of the order, a notice of interpleader; and that the garnishees, Jenkins & Jenkins, pay to the clerk of the court $752.70, being the moneys in their hands, and be discharged from liability. Notice of such interpleader was duly served upon J. F. Ellis, as required by such order, together with the copy of the order, and due proof thereof made. J. F. Ellis thereupon answered at great length, and to the effect that he claimed the $752.70 by virtue of having an attorney’s lien thereon for services and expenses rendered in the action of Swihart v. Harless and others, and by virtue of an assignment from Swihart to him made April 30, 1897, and also that he had advanced for Swihart $350, which was paid to the plaintiff before this garnishment was commenced, for the purpose of releasing the mortgage and. judgment mentioned, and which-plaintiff held against- Swihart.

Upon the trial of the issues formed by such answer of Ellis and the affidavit for garnishment the court found as-matters of fact, in effect, that between November 23, 1893, and April 30, 1897, Ellis performed legal services in behalf of Swihart as his attorney in certain actions brought by Swihart against IT. A. Harless and others, which were of the reasonable value of $350; that he also incurred and expended in behalf of Swihart for disbursements in such action-between such dates $105.41; that April 30, 1897, a compromise settlement of the matters in dispute in such actions between Swihart and Harless and others was effected,, whereby Harless and others agreed to pay to Swihart $800 in settlement thereof as per the written stipulation mentioned ; that Swihart retained $47.30 of that amount to repay him for what he had expended for taxes as mentioned; that, thereupon Harless and others paid to and deposited with Jenkins & Jenkins $752.70, to be paid to J.F. ElUs, according to the terms of the stipulation, upon the execution and delivery of a proper release and satisfaction of the mortgage-mentioned; that in concluding the terms of the settlement, on April 30,1897, for a valuable consideration, by an instrument in writing, Swihart duly transferred, assigned, and set. over unto J. F. ElUs the $752.70 so deposited with Jenkins- & Jenkins, subject to the terms and conditions of the stipulation mentioned; that all the terms and conditions of the stipulation to be performed by ElUs were by him performed, and that he paid to the Southwestern Land Oorwpany in payment and satisfaction of the mortgage mentioned, and for the satisfaction and release thereof, $350, June 22,1897; that he duly tendered a release of that mortgage to Jenkins & Jenkins, and demanded the $752.70 shortly after the institution of the garnishee proceedings against Jenkins & Jenkins ; that the value of the services rendered by Ellis, together with, the sums incurred and expended by him as disbursements in the actions mentioned, together with the sums paid by him to the Southwestern La/nd Oomjxmy for a release and satisfaction of the mortgage referred to, exceed in amount the sum so deposited with Jenkins & Jenkins, or either of such firm; and that no part of that sum has been paid to Ellis.

And as conclusions of law the court found, in effect, that the interpleaded defendant, ElUs, was entitled to the money paid to the clerk of the court in the garnishment proceed-' ings, being $752.70, and to judgment for the payment thereof to him, and for his costs, not exceeding $25, and also his disbursements therein against the plaintiff, the Southwestern Land Goinpany; and ordered judgment to be entered accordingly.

Erom the judgment so entered the plaintiff appeals.

In the suit of Swihart v. Harless and others nothing was conceded to be due. On the contrary, all material allegations of the complaint were put in issue by the answer. The $800 paid by Harless and others was not to satisfy an admitted indebtedness from them to Swihart, but by way of compromise and settlement of the numerous differences and disputes mentioned in the stipulation. It was stipulated’ that Swihart should have $41.30 of that amount on account of the taxes he had paid, but neither he nor Ellis was im trusted with any portion of the balance of $752.10, which was deposited with Jenkins & Jenkins, and they were to pay the same to Ellis upon his complying with the terms and conditions of the stipulation. The amount of the mortgage held by the plaintiff ($350) was paid by Ellis, June 22,' 1897, being prior to the service of the garnishee summons-on Jenkins & Jenkins. The only dispute is whether the money so in the hands of Jenkins & Jenkins should be held on the garnishment or paid over to Ellis as adjudged by the trial court. It was admitted of record by the attorneys on' the trial that all the conditions of the stipulation had been complied with, and that the $152.10 was then in court to abide the event oí the suit. It is true that the release of the mortgage sent by Ellis to Jenkins & Jenkins prior to the garnishment was defective, and the perfected release was not executed and returned to J enkins & J enkins until after the garnishment. But that release or satisfaction was merely written evidence of the payment made by Ellis, and consequently the discharge, which occurred prior to the garnishment; so that the terms and conditions of the stipulation had been fully complied with prior to the garnishment, except that the release or satisfaction was not perfected until a short time after the garnishment, and the money held by Jenkins & Jenkins had not in fact been paid over to Ellis.

Counsel for the plaintiff contends that the release of the mortgage was obtained from the plaintiff by the false representations of Ellis, and also contends that Ellis was employed by the plaintiff to prosecute the action of Swihart v. Harless and others at the expense of the plaintiff, under an agreement that the plaintiff should be paid out of the proceeds of all money that Swihart was owing to the plaintiff; and that in the performance of such service Ellis worked against the interest of the plaintiff, instead of working for its interest. ’ In answer to such contentions it is enough to say that, whatever grievance or cause of action the plaintiff may have against ElTAs, yet it cannot be redressed in this garnishment to obtain money belonging to Swihart.

Counsel for the plaintiff further contends that, as Ellis made a voluntary assignment for the benefit of his creditors November 30, 1894, and as most of his services in the action of Swihart v. Harless and others were performed prior to such assignment, they necessarily passed to his assignee, and so did not belong to Ellis at the time of the garnishment. But the plaintiff has no right to the value of such services by reason of that assignment, and cannot vicariously obtain the same for the benefit of such assignee, much less for itself.

Counsel for the plaintiff contends that the money was paid into court as Swihart’s money, and that the plaintiff was entitled to the same by virtue of its garnishment, unless Ellis had a prior claim thereto. But the real question is whether the money was the property of Swihart at the time the garnishee summons was served upon Jenkins & Jenkins. The stipulation was made nearly two months prior to such garnishment. By the terms of that stipulation the $752.70 was to be paid to Ellis upon his procuring the release of the mortgage and performing the other things therein specified. Those things were all performed, and the mortgage paid, and a defective release thereof delivered, prior to the garnishment, and a perfected release delivered very soon after the garnishment. By the stipulation Swihart consented that the money should be so paid to Ellis. Swihart made a written assignment to Ellis of the entire proceeds of that litigation and settlement under date of April 30,1897, being the same date as the stipulation. True, it is contended that Swihart did not in fact sign that assignment until some time after the garnishment; but that assignment, after all, was nothing more than a written ackno wledgment on the part of Swihart that Ellis could have the money, subject to the terms and conditions mentioned in the stipulation. Had Ellis failed to procure the release of the mortgage, or had there been a failure to execute the quitclaim deed therein mentioned, the money so on deposit with Jenkins & Jenkins would necessarily have been returned to TT. A. Harless. In no event was that money, by the terms of the stipulation, to be paid over to Swihart. He had no right, title, or claim to the same at the time of the service of the garnishee summons.

We find no material error in the record.

By the Court.— The judgment of the circuit court is affirmed.