Pedlas v. Golbus , 156 Wis. 341 ( 1914 )

SiebecKER, J.

Tbe trial court dismissed tbe garnishment proceeding for want of jurisdiction, bolding the affidavit of garnishment as insufficient in that it failed to state that tbe ■defendants are not residents of tbis state or that their residence is unknown and cannot with due diligence be ascertained, or that tbe defendant is a foreign corporation. Sec. '2753, Stats., provides when a party may proceed by garnishment in circuit court actions and prescribes upon what conditions and in what manner the proceeding may be commenced. It provides: “Either at tbe time of issuing tbe summons or at any time thereafter, before final judgment, in any action to recover damages founded upon contract, express or implied, or in any cause of action mentioned in section 2731, or upon judgment or decree, . . . the plaintiff or some per-sonan his behalf may make an affidavit stating the amount of the plaintiff’s claim against the defendant, over and above all offsets, . . .” and that the person sought to he garnished is indebted to defendant or has property in his possession or control belonging to defendant which is not exempt from seizure or sale upon execution. The question is, Must such affidavit for garnishment in causes of action sounding in tort mentioned in sec. 2731, Stats., state all the elements required to be stated in an affidavit for the issuance of a writ of attachment in such causes embraced in sec. 2731 ? The object under both these sections is to impound the defendant’s property and apply it in satisfaction of the demands the plaintiff has against defendant. Garnishment proceeding is, in effect, an attachment of the defendant’s effects in the garnishee’s possession or control. The authority of a plaintiff to employ this remedy is regulated by these statutes and their conditions must be followed. Eeading the two sections of the statutes together, they show an intention by the legislature to give a plaintiff the right of garnishment in the causes of action wherein attachments may issue. It is not particularly stated in the garnishment statute what elements of the attachment statute shall be stated in the garnishment affidavit to entitle plaintiff to institute garnishment proceedings in causes of action mentioned in sec. 2731, Stats. It seems reasonable that it was intended that the right to proceed by garnishment to impound a defendant’s property in causes embraced in sec. 2731 was conferred upon the condition that the right to an attachment is conferred, and that such condition must be shown to exist by affidavit before a party can proceed by garnishment in the manner prescribed in see. 2753. Manifestly a party desiring to proceed by garnishment against a person in an action sounding in tort must look to tbe provisions of sec. 2131 •to ascertain tbe condition upon wbicb such a right is granted. Tbis section provides that if a plaintiff has a claim for damages for á tort against defendant he can proceed if it appears that bis claim is in excess of $50, stating tbe amount, and further that defendants are not residents of this state or their residence is not known nor ascertainable with due diligence, ■or that defendant is a foreign corporation. It is therefore evident that these last conditions are necessary facts to be shown to entitle the plaintiff to proceed in garnishment .against tbe defendant in a tort action. Tbe proper and necessary way to do this is to allege them in the affidavit for garnishment. These considerations lead us to conclude that the .affidavit of garnishment is fatally defective, and that- the trial court properly dismissed tbis proceeding for want of jurisdiction.

By the Court. — The order appealed from is affirmed.

WiNsnow, C. J., and YiNje, J., dissent.