
    Johann vs. Rufener, Garnishee.
    PRACTICE: GARNISHMENT.
    1. After issue taken on the answer of a garnishee, a motion for judgment on such answer, made and denied, does not entitle the garnishee to a judgment of dismissal and for costs; hut plaintiff is still entitled to a trial of the issues of fact raised hy the pleadings, as in other cases.
    2. Where the garnishment was for moneys alleged to he due the principal debtor on a purchase of land from him hy the garnishee, and the defense set up hy the garnishee was that said unpaid purchase money was due to the wife of the principal debtor, it is intimated that on paying into court the amount in controversy, and filing the proper affidavit, the garnishee should he permitted to withdraw his answer, and an order should he made substituting the wife of the principal debtor as defendant in the garnishee suit. Tay. Stats., 1420, § 22.
    
      APPEAL from the Circuit Court for Fond du Lac County.
    On the 16th of February, 1870, the plaintiff commenced an action by an attachment in the- circuit court, against Christian Rufener, and the same day caused the respondent to be duly summoned as a garnishee. The respondent answered before a court commissioner, on the 26th of the same month, as he was required to do by the notice of garnishment served upon him, and disclosed that he had in his hands $317, which was part of the proceeds of the sale of Christian Rufener’s farm; but he claims that the money belonged to the* wife of the latter. The answer of the garnishee- was filed in the clerk’s office, June 17th, 1870; and on the 29th of September following, the plaintiff served upon the garnishee a notice that he was not satisfied with his answer, and elected to have a trial upon the issue made thereby.
    At the October Term, 1870, of the circuit court, the plaintiff moved for judgment upon the answer of the garnishee; and on the day that judgment was rendered in the principal action against Christian Rufener (November 15, 1870) the court denied the motion for judgment against the garnishee. The garnishee suit was afterward noticed for trial by the plaintiff at several terms of the circuit court. At the January term, 1872, the same was noticed for trial by both parties; and when the cause was reached in its order on the calendar, the plaintiff being ready for trial, the court, on motion of the attorney of the garnishee, then and there made ore temes, dismissed the garnishee action, and gave judgment against the plaintiff for the costs thereof.
    The plaintiff appealed from the judgment.
    
      Norman S. Gilson (with Gerrit T. Thorn, of counsel), for appellant.
    
      Fred. 0. Thorp, for respondent.
   Lyon, J.

The answer of the garnishee leaves it in doubt whether the money in his hands belongs to the judgment debtor or to tbe wife of tbe latter. Certainly it does not admit that tbe same belongs to tbe judgment debtor, and tbe circuit court very properly denied tbe plaintiff’s motion for judgment against tbe gamisbee upon bis answer.

Tbe answer, in form, denies that tbe garnishee bas money in bis bands belonging to tbe judgment debtor, although certain facts are stated therein which are not entirely consistent with such denial. It sufficiently appears from tbe answer, however, that Mrs. Bufener claims to be tbe owner of tbe money in tbe bands of tbe garnishee. This raises tbe distinct issue of fact as to tbe ownership of tbe money. Tbe plaintiff duly elected to have such issue tried, and tbe same was for trial at tbe first jury term of tbe circuit court next after tbe term at which judgment was obtained in the principal action. Tay. Stats. 1480, § 53.

Tbe circuit court held that by moving for judgment upon tbe answer, tbe plaintiff waived tbe right to have a trial of tbe issue made by tbe answer of the garnishee. We think that the court was wrong in giving such effect to tbe motion. It very frequently happens, in the trial of causes wherein issues of fact have been made by tbe pleadings, that one party or tbe other moves for judgment upon the pleadings. The motion by tbe plaintiff may rest upon tbe claim that tbe answer admits tbe material allegations of tbe complaint; and tbe motion may be made by tbe defendant on tbe ground that the complaint falls to state a cause of action, or that a reply to a counter-claim fails to state a defense thereto. On such motion it may be held that tbe complaint states a cause of action, or that tbe answer contains a defense to tbe action, or that tbe reply contains a defense to tbe counter-claim, as tbe case may be; and tbe motion for judgment may therefore be denied. But was it ever held that because a party bad made such a motion, which was denied because an issue of fact was made by the pleadings, he thereby waived His right to have that issue tried? We have been referred to no cases which hold any such doctrine, and are entirely unable to perceive bow it can be sustained.

In tbis proceeding tbe plaintiff, by bis motion for judgment, took tbe opinion of tbe court as to wbetber tbe answer of tbe garnishee made an issue of fact. Tbe court being of tbe opinion that an issue of fact was made thereby, and the plaintiff having already elected to have such issue tried, nothing remained to be done but to try tbe same when tbe cause should be reached in its order. Instead of doing so, tbe court dismissed tbe proceedings. For tbis error tbe judgment must be reversed.

We deem it proper to say, that under tbe special circumstances of tbis case, if tbe garnishee defendant desires to relieve himself from tbe burden of tbis defense, on paying into court the moneys in controversy, and filing tbe required affidavit, be should be permitted to withdraw bis answer, and an order should be made substituting Mrs. Rufener in tbe place of tbe respondent in tbe garnishee action. Tbis practice is sanctioned by tbe statute. Tay. Stats., 1420, § 22. Tbis course will relieve him from all liability to Mrs. Rufener, in case be should be held as tbe garnishee of her husband, tbe judgment debtor.

If tbe plaintiff' declines to avail himself of tbe privilege given by tbe statute, tbe issue must be tried as it now stands, and tbe parties must abide tbe result.

By the Court. — Tbe judgment of tbe circuit court is reversed, and a venire de novo awarded.  