Kindinger v. Behnke , 150 Wis. 557 ( 1912 )

Tramar, J.

While the action above mentioned was pending the plaintiff therein, respondent here, upon proper affidavits caused summons in garnishment to be issued against several persons alleged to be indebted, etc., to the defendants. These persons each answered admitting an indebtedness to the defendants W. A. Behnke and A. L. Behnke, but alleging further that one Albert Behnke claimed to be tbe owner of the demands against them. By due proceedings thereafter Albert BehrUce was allowed to intervene as such claimant and served what he called an answer, claiming to own the demands. The plaintiff did not traverse the answers of either of the garnishees or that of Albert Behnke. After judgment in the principal action the garnishee action came on for trial. Plaintiff offered in evidence the judgment roll in the principal cause, also other evidence. The intervener, Albert Behnke, offered no evidence, but left his claim of title to the demands against the garnishees entirely unsupported, and judgment went in favor of the plaintiff against each garnishee for the amount admitted in the answer of the latter, and from this judgment the three Behnkes appeal.

There was no occasion for traversing the several answers of the garnishees if plaintiff was satisfied with the amount which each admitted he owed to the principal defendant, and we must assume plaintiff was satisfied. Neither was there any necessity for a traverse of the answer of the intervener. If he chose to take the position of a defendant and answer the affidavits in garnishment, the affirmative matter in his answer not constituting a counterclaim was at issue by force of statute. Sec. 2667, Stats. (1898). In any event, when an inter-vener comes in, either as plaintiff or defendant, for the purpose of making a claim to some property or fund adverse to the other parties or either of them, he must make good his claim. The burden of proof is, under such circumstances and upon this point, on him. So there is nothing to impeach the judgment appealed from upon its merits. But it is contended that the principal action was upon a claim sounding in tort and that upon such demand no garnishment is authorized. However, it appears quite clearly to us that the principal action was one for damages caused by breach of the covenants of a lease. The subject of the second cause of action is thus introduced, and the long detailed description of acts negligently done, etc., is intended to show tbat tbe dilapidation was not the result of ordinary wear and tear. Tbe complaint is awkward and unscientific, but it is. enough. W. H. Kiblinger Co. v. Sauk Bank, 131 Wis. 595, 597, 111 N. W. 709; Boehrer v. Juergens & A. Co. 133 Wis. 426, 113 N. W. 655; Johnston v. Charles Abresch Co. 123 Wis. 130, 101 N. W. 395.

Being “an action to recover damages founded upon contract” (sec. 2753, Stats. 1898), tbe garnishment was properly issued. Tbe statute does not say “liquidated damages,” but uses general words, and it would be an extraordinary and unsound construction which would undertake to limit tbe word “damages” by interpolation of tbe adjective “liquidated.” Fire Dept. v. Tuttle, 50 Wis. 552, 7 N. W. 549; First Nat. Bank v. Van Vooris, 6 S. Dak. 548, 62 N. W. 378.

Several minor questions relating to tbe taxation of costs and its effect as recognition of tbe principal action as one sounding in tort are argued, but with tbe judgment in tbe principal action a verity, tbe garnishees admitting the indebtedness to tbe principal defendants, and tbe intervener offering no evidence to uphold bis claim to tbe demands against tbe garnishees, and tbe complaint in tbe principal action consisting of one cause of action in equity for reformation of tbe lease and two others for damages for breach of its covenants, it is unnecessary to prolong tbe discussion, for tbe judgment in garnishment could not, under tbe circumstances, be reversed or modified.

By the Oourt. — Judgment affirmed.