Opinion
No. 59.
Argued: November 25, 1968.
Decided: December 20, 1968.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Larry J. Ratzel of Milwaukee.
For the respondent there was a brief and oral argument by Henry C. Friend of Milwaukee.
Plaintiff-respondent Paul J. Moskowitz commenced a garnishment action in the circuit court for Milwaukee county naming Peter J. Mark as defendant, Marian Mark as garnishee defendant, and appellant Arthur Vander Heyden as garnishee defendant. The garnishment complaint, in pertinent part, alleged:
1. The plaintiff-respondent, Paul J. Moskowitz, is the assignee for benefit of creditors and court-appointed receiver of Peter J. Mark, Honey Creek Terrace Corporation and Mark Realty, Inc.
2. The garnishee defendant-appellant Arthur Vander Heyden is an investor in real estate.
3. The plaintiff-respondent is informed and believes that the garnishee defendant-appellant is indebted to and has property belonging to the said Peter J. Mark or to the corporations which he owns, and in particular, that he has entered into contracts in which Mark has a beneficial interest.
4. Wherefore, plaintiff-respondent demands judgment against the garnishee defendant-appellant to "recognize and adjudicate his interest as receiver of the said assets of Peter J. Mark, and the corporations which he owned, for such other and further relief as the Court may deem fitting . . . ."
Garnishee defendant-appellant Arthur Vander Heyden demurred to the complaint asserting that the circuit court lacked jurisdiction because the garnishment summons and complaint did not meet the requirements of sec. 267.02(1) (a), Stats. The circuit court overruled the demurrer. Garnishee defendant-appellant Arthur Vander Heyden appeals.
The plaintiff-respondent argues that a state court receiver, who is subrogated to the rights of creditors, is authorized by statute to pursue "provisional remedies," that garnishment has been termed a provisional remedy, and that a court-appointed receiver may and should be able to bring actions of garnishment to carry out his duty to gather in the assets of the estate.
Sec. 128.11. "Provisional remedies. In all actions authorized by this chapter appropriate provisional remedies may be had and final relief administered to the equal distribution of all assets recovered among the creditors of the debtor, and the court may make such orders for the payment of costs and expenses as may be just. An action or proceeding authorized herein for the benefit of all creditors may be taken by a creditor although his demand is not due at the commencement thereof."
Mahrle v. Engle (1952), 261 Wis. 485, 488, 53 N.W.2d 176.
Garnishee defendant-appellant counters with the reminder that while garnishment is an action it is not a cause of action and the contention that plaintiff-respondent has not met the statutory requirements for the commencement of a garnishment action.
Wells v. American Express Co. (1882), 55 Wis. 23, 11 N.W. 537, 12 N.W. 441.
Markman v. Becker (1959), 6 Wis.2d 438, 95 N.W.2d 233.
Sec. 267.02(1) (a), (b), Stats. "Garnishment before and after judgment; wages or salary. (1) A plaintiff may commence a garnishment action at any time after:
"(a) A summons is issued: 1. In an action for damages founded upon contract, express or implied (or in a contract action where a writ of attachment could issue on demands not yet due under s. 266.03(3)). 2. In an action upon a judgment. 3. In a tort action where a writ of attachment could issue under s. 266.03 (2).
"(b) An execution upon an in personam judgment is issuable."
Sec. 267.05 "Garnishee complaint before and after judgment; several garnishees. (1)The garnishee complaint in a garnishment action before judgment must allege the existence of one of the grounds for garnishment mentioned in s. 267.02(1) (a) . . . .
"(2) The garnishee complaint in a garnishment action after judgment must allege the existence of the grounds for garnishment mentioned in s. 267.02(1) (b) . . . ."
Sec. 267.16(1) "Principal action tried first; judgment. (1) No trial shall be had of the garnishment action until the plaintiff has judgment in the principal action . . . ."
Garnishment was unknown to the common law and is entirely statutory. In the absence of specific statutory authorization, garnishment does not lie. While a state court receiver is in the position of a creditor who has obtained a lien by judicial process, he is not the holder of an in personam judgment against each and every debtor. The right to commence a garnishment action must be found within the provisions of the garnishment statute. The statute authorizing appointment of state court receivers creates no detour around or shortcut past the requirements of the garnishment statute as applied to garnishment actions. Unless and until a court-appointed receiver, as to a particular garnishee defendant, can meet the statutory requirements for initiating garnishment proceedings, this remedy is not available to him.
Skalecki v. Frederick (1966), 31 Wis.2d 496, 143 N.W.2d 520.
In re Adams Machinery, Inc. (1963), 20 Wis.2d 607, 123 N.W.2d 558.
By the Court. — Order reversed with directions to enter judgment dismissing the complaint.