Wis. Stat. § 812.01

Current through Acts 2023-2024, ch. 272

Section 812.01 - Commencement of garnishment

(1) Any creditor may proceed against any person who is indebted to or has any property in his or her possession or under his or her control belonging to such creditor's debtor or which is subject to satisfaction of an obligation described under s. 766.55(2) , as prescribed in this subchapter. "Plaintiff" as used in this subchapter includes a judgment creditor and "defendant", a judgment debtor or the spouse or former spouse of a judgment debtor if the judgment is rendered in connection with an obligation described under s. 766.55(2) .

(2) The procedures in this subchapter govern all garnishments except the garnishment of earnings. Except as otherwise provided in this subchapter, the general rules of practice and procedure in chs. 750 to 758 and 801 to 847 apply to actions under this subchapter.

(2a) A garnishment action is a separate action.

(3) An individual may commence a garnishment action in the individual's own person and in the individual's own behalf, or by an attorney licensed to practice in the courts of this state, but not otherwise. Garnishment actions on behalf of any other party shall be commenced only by attorneys licensed to practice in the courts of this state.

(4) No garnishment action shall be brought to recover the price or value of alcohol beverages sold at retail.

Wis. Stat. § 812.01

Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.01; 1981 c. 79 s. 17; 1985 a. 37; 1993 a. 80, 486.

The doctrine of marshaling assets is discussed. Moser Paper Co. v. North Shore Pub. Co. 83 Wis. 2d 852, 266 N.W.2d 411 (1978). To be subject to garnishment, a debt must be owing absolutely at the time of the service of process, even if payable later. When the question of indebtedness depends entirely upon future contingencies, there is no liability. Hometown Bank v. Acuity Insurance, 2008 WI App 48, 308 Wis. 2d 503, 748 N.W.2d 203, 07-1048. Notwithstanding sub. (2), procedures in ch. 799 are used in small claims garnishment actions. Wisconsin Natural Gas Co. v. Kletsch, 95 Wis. 2d 691, 291 N.W.2d 640 (Ct. App. 1980). An otherwise valid judgment can be enforced against a legal entity when the judgment is entered against the name under which the legal entity does business. If the name under which a person or corporation does business is "simply another way to refer to" a single legal entity and constitutes no entity distinct from the person or corporation who does business, then a judgment against the "doing business as" name is enforceable against the legal entity from which it is indistinct. Paul Davis Restoration of S.E. Wisconsin, Inc. v. Paul Davis Restoration of Northeast Wisconsin, 2013 WI 49, 347 Wis. 2d 614, 831 N.W.2d 413, 11-1121. A Wisconsin court may issue an in personam order affecting out-of-state property, even though the court does not have in rem jurisdiction over the property. A debt may generally be garnished wherever personal jurisdiction may be exercised over the garnishee. Midland Funding, LLC v. Mizinski, 2014 WI App 82, 355 Wis. 2d 475, 854 N.W.2d 371, 13-2422. A plaintiff in a garnishment action has no right to receive any property from the garnishee until superior liens are satisfied. The mere fact that a creditor was the first party to file a garnishment action is not dispositive of priority. Prince Corporation v. Vandenberg, 2015 WI App 55, 364 Wis. 2d 457, 868 N.W.2d 599, 14-2097. A garnishment proceeding is separate from an action establishing a debtor's liability to a plaintiff creditor in the garnishment action. In a garnishment action, a money judgment may not be ordered against nongarnishees, including the debtor. Beck v. BidRX, LLC, 2018 WI App 61, 384 Wis. 2d 207, 918 N.W.2d 96, 17-2043. The state is immune from suit in any garnishment action not involving a state employee or officer. 77 Atty. Gen. 17. Garnishment of corporate bank accounts must comply with due process protections of Fuentes and Sniadach. North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U.S. 601 (1975).