Sniadach v Family Finance Corp Writ of Certiorari

    APPENDIX

Supreme Court of the United States
OCTOBER TERM, 1968

No. 130

CHRISTINE SNIADACH, 
PETITIONER,

—v.—

FAMILY FINANCE CORPORATION of Bay View 
and MILLER HARRIS INSTRUMENT COMPANY.

ON W R IT OF CERTIORARI TO TH E  SUPREM E COURT OF W ISCONSIN

PETITION FOR CERTIORARI FILED MAY 27, 1968 

CERTIORARI GRANTED FEBRUARY 24, 1969



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968 

No. 130

CHRISTINE SNIADACH, 
PETITIONER,

—v.—

FAMILY FINANCE CORPORATION of Bay View 
and MILLER HARRIS INSTRUMENT COMPANY.

ON W RIT OF CERTIORARI TO TH E  SUPREM E COURT OF W ISCONSIN

IN D E X  T O  A P P E N D IX

Original Print
Dates of Pleadings and Orders ..................................  1
Garnishee Summons......................................................  110 2
Answer of Garnishee ....................................................  112 4
Complaint in Garnishment ........................................  113 5
Answer of Garnishee ..................................................... 115 7
Order to Show Cause ..................................................  116 8
Affidavit of Thomas M. Jacobson ..............................  117 9
Order of County C ou rt................................................  118 10
Notice of Appeal to Circuit C ou rt............................  120 12
Order of Circuit Court ..............................................  121 13
Opinion of Circuit Court ............................................  101 26
Notice of Appeal to Supreme C ou rt ........................ 122 24
Index to Appendix of Appellant’s Brief in Supreme

Court of Wisconsin ..................................................  123 25
Decision of Supreme Court of Wisconsin ................ 124 26
Opinion of Wisconsin Supreme Court .................... 126 27
Dissenting Opinion in Wisconsin Supreme Court .... 140 42
Order of Supreme Court of Wisconsin, denying

motion for rehearing ................................................  149 52
Certification of Record ................................................  151 53
Order Granting W rit of Certiorari............................  54

Meilen Press Inc. — N. Y. C.



1

Dates of Pleadings and Orders

DATE

11/16/66 Complaint in Garnishment filed.
11/21/66 Garnishee summons filed.
11/22/66 Answer of Garnishee filed.
11/23/66 Order to Show Cause entered.
1/ 3/67 Hearing held in County Court.
1/ 7/67 Order entered by County Court.
1/ 9/67 Notice of Appeal filed.
4/ 4/67 Order entered by Circuit Court.
4/18/67 Notice of Appeal filed.

12/ 8/67 Order entered by Supreme Court of Wisconsin. 
12/27/67 Motion for rehearing filed.

2/27/68 Motion for rehearing denied.

5/27/68 Petition for Writ of Certiorari filed.
2/24/69 Certiorari Granted.

i >



2

2 GARNISHEE SUMMONS 
(Form al Parts Omitted)

Case No. A - 1058
Small C laim s Branch - C ivil Division 

THE STATE OF WISCONSIN, To said garnishee:

You are hereby summoned, as garnishee of 
the defendant, and required to be and appear b e ­
fore  the County Court o f Milwaukee County, in the 
City of Milwaukee, R oom  411 of said Courthouse 
at _2. o 'c lo ck  A. M . on the 6th day of D ecem ber, 
1966, to answer, whether you are indebted to or 
have in your possession  or under your control any



Pmge o f
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property belonging to said defendant. You are 
hereby ordered to retain such property pending the 
further order of the Court.

You are further required to m ail a copy of 
your answer, for  filing, to the C lerk of Courts, at 
the Courthouse, in the County of Milwaukee, and 
also m ail a copy to p la in tiffs  attorney; and in case 
of your failure so to do, judgment w ill be rendered 
against you for the amount of plaintiff’ s judgment 
against said defendant, and costs , of which the said 
defendant w ill also take notice.

If wages or salary are the subject matter of 
this garnishm ent action, you are required as p ro ­
vided in s. 272. 18 (15) (e) of W is. Statutes to pay 
over to the principal defendant, on the date when 
the wages or salary subject to the garnishment a c ­
tion is norm ally payable, a subsistence allowance, 
out of the wages or salary then owing, in the sum 
of $25 in the case of an individual without depend­
ents or $40 in case of an individual with dependents, 
but in no event in excess  of 50 per cent of the wages 
or salary owing.

Dated this 21 st day of N ovem ber 1966

FRANCIS X. McCORMACK 
C lerk of C ircu it and County Courts, 
Milwaukee County, W is.
By Marvin J. Kopitzke 
Chief Deputy C lerk of County Court, 

SEAL Milwaukee County, W is.
SHELDON D. FRANK 
P la intiff's  Attorney 
L35 West W ells Street 

A ddress



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ANSWER OF GARNISHEE: FOR WAGES, 
SALARY OR OTHER MONEYS DUE AND OWING.

Milwaukee County Court, Civil D ivision, 
Courthouse, State of W isconsin

FAMILY FINANCE CORP. OF BAY VIEW
Plaintiff

CHRISTINE SNIADACH alias
Defendant

MILLER HARRIS INSTRUMENT CO.
Garnishee

Return Date 11 /29 /66  
STATE OF WISCONSIN )

) ss.
Milwaukee County )

----------------------- being firs t  duly sworn, on oath d e ­
poses and says that he is the_______

----------------(officia l titlel _of the garnishee, in the
above entitled action, and that he knows of his 
own knowledge that the garnishee has, wages, 
salary or other m oneys, in his possession  or con ­
trol belonging to_________________________(defendant)
in the sum of $--------------- ---and further that garni­
shee w ill pay from  that amount $________________
as a subsistence allow ance, and w ill hold the
balance of $-------------- -- for  the further order of
the court.

Subscribed and sworn to before  me 
this-------- day o f_____ 19___

Notary Public, Milwaukee County, W isconsin



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7 COMPLAINT IN GARNISHMENT 
(Form al Parts Omitted)

The plaintiff . . . .  in the above entitled action,
by SHELDON D FRANK, attorney, a llege ...........
as follow s, to wit That a summons has been 
issued in action by the above named plaintiff. . . . 
against above named defendant, . . . .  that judgment 
has not yet been entered therein; that said action 
is one to recover  damages founded upon a p rom is ­
sory note; that the amount of the plaintiff. . . . claim
against the said defendant. . . .  is $420. 00 ................
D ollars above all offset.

* * *

That plaintiff believes that M iller H arris 
Instrument C o. is indebted to or has property, 
to -w it: Money credits or effects in its possession  
or under its control belonging to the defendant 
Christine Sniadach, alias and that such indebted­
ness, property, money, cred its, or e ffects here ­
in mentioned, are to the best of plaintiff’ s knowl­
edge and belief, not by law exempt from  sale or 
execution, or any provisional or final p rocess  
issued from  any court or any proceedings in aid 
thereof.

W herefore plaintiff..........demands judgment
against defendant......... in the sum of $47.0. DD
together with costs  and disbursem ents of this
action, and further, plaintiff......... demands that
the garnishee defendant......... be ordered to hold
any property  in its p ossession  or under its con ­
trol belonging to said defendant......... until further
order of the Court, or judgment against the garn i­
shee defendant......... upon.......... fa ilure so to do.



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SHELDON D. FRANK 
Attorney for  Plaintiff 
135 West W ells Street 
Milwaukee, W isconsin 53203 
Phone: 276-3787

STATE OF WISCONSIN )
) ss.

MILWAUKEE COUNTY )

SHELDON D. FRANK,being first duly sworn 
on oath says:

* * *
That he is the attorney for the plaintiff 

in the above entitled action.

* * *

B. That the action or defense is founded 
upon a written instrument in affiant’ s 
posse s sion.

* * *

That he has read the foregoing complaint and 
knows the contents thereof and that same is true 
to his own knowledge except as to those m atters 
therein stated to be alleged on inform ation and 
belie f, as to those m atters he believes to be true.

/ s /  Sheldon D. Frank 
Sheldon D. Frank

Subscribed and sworn to before me this 16th day 
of N ovem ber, 196ft.

/ s /  Carol Lynn Kwiatkowski 
Notary Public, Milwaukee 
County, W isconsin.



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Record 7

ANSWER OF GARNISHEE: FOR WAGES,
SALARY OR OTHER MONEYS DUE 
AND OWING.

Milwaukee County Court, Civil D ivision, 
Courthouse, State of W isconsin

704-310
FAMILY FINANCE CORP, OF BAY VIEW

Plaintiff
CHRISTINE SNIADACH. alias

Defendant
MILLER HARRIS INSTRUMENT CO.

Garnishee

Return Date 12/6

STATE OF WISCONSIN )
) s s.

Milwaukee County )
John Oster III being firs t  duly sworn, on oath 

deposes and says that he is the President (official 
title) of the garnishee, in the above entitled action, 
and that he knows of his own knowledge that the 
garnishee has, wages, salary or other m oneys, 
in his possession  or control belonging to Christine 
Sniadach. in the sum of $63, 18 and further that 
garnishee w ill pay from  that amount $31. 59 as a 
subsistence allowance, and w ill hold the balance 
of $31. 59 for the further order o f the court.

Subscribed and sworn to before me 
this ?.?.__ day of Novem ber . 1966.
1*L________________ _____________________
Notary Public, Milwaukee County, W isconsin 
My C om m ission  Exp. 5 /2 1 /6 7

/ s /  John Oster III. President



8

APPENDIX A

Order to Show Cause

(Formal Parts Omitted)

Upon the Affidavit hereto annexed and upon all the 
records, files and proceedings had and on motion of 
Barbee & Jacobson, defendant’s attorneys;

It i s  o r d e r e d , that the above named plaintiff, Family 
Finance Corporation of Bay View appear before the 
Honorable Thaddeus J. Pruss, County Judge in and for 
Milwaukee County, Room 403, in the Courthouse, at 901 
North 9th Street, City of Milwaukee, County of Milwaukee, 
State of Wisconsin, on the 3rd day of January, 1967, at 
9 :00 o’clock A.M. or as soon thereafter as counsel can be 
heard to show cause why the garnishment proceedings in 
the above matter should not be dismissed on the merits 
for violating defendant’s rights under the Wisconsin Con­
stitution, Article 1, Section 9; and further defendant’s due 
process and equal protection rights under the United 
States Constitution 14th Amendment.

It i s  f u r t h e r  o r d e r e d , that a copy of this Order to Show 
Cause, together with a copy of the Affidavit hereto an­
nexed, be served upon the above named plaintiff at least 
48 hours prior to the time set for hearing herein.

Dated at Milwaukee, Wisconsin, this 23rd day of Decem­
ber, 1966.

/ s /  T. J. P russ

County Judge



9

Affidavit of Thomas M. Jacobson

S tate of W isconsin,
County o f  M i l w a u k e e , ss. :

T homas M. J acobson, being first duly sworn on oath 
deposes and says:

1. That on the 21st day of November, 1966 the plaintiff 
commenced an original action and garnishment proceed­
ings against the defendant herein;

2. That plaintiff as a result of said garnishment action 
against defendant is responsible for the garnishee defen­
dant in said matter holding $31.59 due defendant for 
wages;

3. That plaintiff has not legally established that defen­
dant in fact owes plaintiff any amount of money nor re­
duced said claim to a valid judgment.

That the defendant’s attorney makes this affidavit for 
the purpose of obtaining an Order directing the plaintiff 
to show cause why the garnishment action in the instant 
proceedings should not be dismissed for being in viola­
tion of defendant’s constitutional rights under the Wiscon­
sin Constitution, Article 1, Section 9 and the United States 
Constitution, 14th Amendment in that defendant is being 
deprived of her property without due process of law and 
further Wisconsin Statutes Chapter 267 permitting gar­
nishment before judgment of a wage earner’s salary treats 
said class unequally in comparison to other individuals 
similarly situated; that for said reason your Affiant asks 
the Court to declare Wisconsin’s garnishment law before 
judgment, more particularly Sections 267.02 (1) (a) 1., 
267.05 (1), and 267.07 (1) Wis. Stats. 1965 unconstitu­
tional for the aforesaid reasons.

/ s /  T homas M. J acobson 
T homas M. J acobson



10

(Formal Parts Omitted)

W h e r e f o r e  an Order to Show Cause returnable before 
the Honorable Thaddeus J. Pruss of the County Court 
requiring the plaintiff to show cause why the garnishment 
proceedings in the above matter should not be dismissed 
on the merits for violating the defendant’s rights under 
the Wisconsin Constitution, Article 1, Section 9 and fur­
ther defendant’s due process and equal protection rights 
under the United States Constitution 14th Amendment 
was signed by the Honorable Thaddeus J. Pruss Decem­
ber 23, 1966;

W h e r e f o r e  Affidavit of defendant’s counsel attached 
thereto indicated plaintiff commenced an original action 
and garnishment proceeding against defendant herein and 
pursuant thereto the garnishee defendant held $31.59 due 
defendant for wages;

W h e r e f o r e  Affidavit of defendant’s counsel attached 
thereto further indicated plaintiff had not legally estab­
lished that defendant in fact owed plaintiff any amount of 
money nor reduced said claim to a valid judgment there­
fore defendant attorney’s affidavit requested the Court to 
Order the plaintiff to show cause why the garnishment ac­
tion in the instant proceedings should not be dismissed 
for being in violation of defendant’s constitutional rights 
under the Wisconsin Constitution, Article 1, Section 9 and 
the United States Constitution, 14th Amendment in that 
defendant is being deprived of her property without due 
process of law and further Wisconsin’s Statutes Chapter 
267 permitting garnishment before judgment of a wage 
earner’s salary treats said class unequally in comparison 
to other individuals similarly situated; that for said reason 
your Affiant asks the Court to declare AVisconsin’s garnish­
ment law before judgment, more particularly Sections

Order of County Court



11

Order of County Court

267.02 (1) (a) 1., 267.05 (1), and 267.07 (1) Wis. Stats. 
1965 unconstitutional, for the aforesaid reasons;

W herefore a hearing was held pursuant to the Order 
to Show Cause before the Honorable Thaddeus J. Pruss, 
January 3, 1967 at 9:00 A. M. in his Courtroom in the 
Courthouse at Milwaukee, Wisconsin;

W herefore at said hearing the plaintiff appeared by 
counsel Sheldon D. Frank and defendant appeared by coun­
sel Thomas M. Jacobson;

Upon all the records, pleadings, and files herein it is
Now therefore ordered :

That the garnishment action in the instant proceedings 
does not violate defendant’s constitutional rights under the 
Wisconsin Constitution, Article 1, Section 9 and the United 
States Constitution 14th Amendment due process and equal 
protection;

That the said determination is for the legislature and 
not for the Court;

That Wisconsin’s garnishment law before judgment, 
more particularly Sections 267.02 (1) (a) 1., 267.05 (1), 
and 267.07 (1) Wis. Stats. 1965 is therefore not unconsti­
tutional.

That defendant’s attorney requests a stay in the garnish­
ment action for purposes of appeal therefore the Court 
further Orders that all proceedings in the instant garnish­
ment action be and hereby are temporarily stayed until 
further Order of this Court.

Dated at Milwaukee, Wisconsin, this 7th day of January, 
1967.

/ s /  T haddeus J. P russ

T haddeus J. P russ, County Judge



12

(Formal Parts Omitted)

P l e a s e  t a k e  n o t i c e  that the defendant, Christine Snia- 
dach, does hereby appeal to the Circuit Court of Milwaukee 
County, State of Wisconsin from the order made herein 
on the 6th day of January, 1967, by the Honorable Thad- 
deus J. Pruss, County Court Judge, which Order refused 
to dismiss the garnishment action herein on the basis the 
Wisconsin garnishment before judgment laws; to-wit, Sec­
tions 267.02 (1) (a) 1., 267.05 (1), and 267.07 (1) Wis. 
Stats. 1965 did not deprive defendant of her constitutional 
rights under the Wisconsin Constitution, Article 1, Section 
9, and the United States Constitution 14th Amendment due 
process and equal protection.

Dated at Milwaukee, Wisconsin this 9th day of January, 
1967.

Notice of Appeal to Circuit Court

/ s /  T homas M. J acobson 
B arbee & J acobson 
Martin R. S tein

Defendant’s Attorneys



13

Order of Circuit Court

(Formal Parts Omitted)

The appeal in this action having been brought before the 
Honorable George D. Young, Judge of the Circuit Court in 
and for Milwaukee County, and pursuant to Stipulation of 
the parties, judgment rendered after filing of briefs by 
both parties,

Now therefore, upon motion of Sheldon D. Frank, attor­
ney for the respondent, Family Finance Corporation of 
Bay View,

I t is hereby ordered :

That the judgment of the Honorable Thaddeus J. Pruss, 
Judge of the County Court, in favor of said respondent, 
Family Finance Corporation of Bay View and against the 
appellant, Christine Sniadach, alias, as rendered and en­
tered on the 3rd day of January, 1967, holding that said 
action, a garnishment issued before the suit was instituted 
was constitutional and did not violate the due process and 
equal protection right of the appellant-defendant, be and 
same hereby is affirmed.

Dated at Milwaukee, Wisconsin, this 18th day of April. 
1967.

/ s /  George D. Y oung

Judge of the Circuit Court

Approved this 4th day of April, 1967
/s /  T homas M. J acobson

T homas M. J acobson, Attorney for Def.



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Record 14

ib  MEMORANDUM DECISION 
(Forma] Parts Omitted)

PREFATORY

This is an appeal from  Branch 6 of the County- 
Court of Milwaukee County. The plaintiff above 
named com m enced a garnishment action against 
the defendant and named the M iller H arris Instru­
ment Co. garnishee. Thereafter, the defendant 
moved the Court below' by way of an order to show 
cause requesting the d ism issal of the action upon 
the ground that the proceeding violated the defend­
ant's rights under A rticle  I, Section 9, of the 
W isconsin Constitution and the Fourteenth Amend­
ment to the United States Constitution.

The defendant appears now to have abandoned 
her contention that there has been a violation of 
A rticle  I, Section 9, of the W isconsin Constitution 
and now contends that the proceeding has violated 
her rights under A rticle  VII, Section 2, of the Wis = 

37 consin Constitution.

MEMORANDUM DECISION

I

ARTICLE VII. SECTION 2. OF THE
WISCONSIN CONSTITUTION

Section 2 of A rticle  VII provides in part, that 
"The judicial power of this state, both as to m at­
ters of law and equity shal) be vested in a supreme 
court c ircu it courts, courts of probate, . . . "

The basis for this argument is that Chapter 
267 contains a presum ption made by the legislature



|P of
cord 15

that in all disputes between a cred itor and his 
alleged debtor the cred itor will prevail and the 
debtor must autom atically prepare for sa tis fa c­
tion of the cre d ito r ’ s claim  through im m ediate 
seizure of his property. It is argued that the 
plaintiff need only file  the summons and com ­
plaint with the clerk  who is then autom atically 
required to issue what purports to be "an order 
o f the County Court, " although it comm ands not 
m erely  an appearance but d isposes of the property, 
and that no judge is involved in any way in this 
p rocess  up to this point. This argument con ­
cludes that all authority to act in a prelim inary 
dispute involving particular litigants has been 
withdrawn from  the Court and is in effect de ­
cided by the legislature.

The foregoing argument does v iolence to the 
provisions of Chapter 267, W is. Stats. It is 
true that the legislature has afforded a rem edy 

38 not known to the com m on law for  the protection 
o f cred itors . The rem edy provided sim ply r e ­
quires that the garnishee complaint must allege 
the existence o f one of the grounds for garnish­
ment, the amount of the p laintiff's claim , above 
all o ffse ts , known to the plaintiff, and that the 
plaintiff believes the garnishee is indebted to or 
has property in his possession  or under his con ­
tro l belonging to the defendant and that such in­
debtedness or property  is not exempt from  execu ­
tion (Sec. 267.05 (1)).

Chapter 267 further provides that the garnishee 
summons and com plaint shall be served on the 
principal defendant not later than 10 days after 
serv ice  on the garnishee as provided in Sec. 262.06 
(Sec. 267. 07). If the answer o f the garnishee 
shows a debt due the defendant, the garnishee may



Page of
Record 16

pay the same or sufficient thereof to cover the 
claim  of the plaintiff, with interest and costs, to 
the clerk  of the court. There is the further p ro ­
vision that the plaintiff may request the garnishee 
in writing to pay such sum to the clerk , and the 
garnishee must, within 5 days after receipt of 
such request, pay the sum to the clerk  who then 
issues his receipt to the garnishee who is thereby 
released of all liability (Sec. 267. 13). However, 
no trial is had in the garnishment action until the 
plaintiff has judgment in the principal action, which 
is d ism issed in those cases in which judgment 
goes for the defendant (Sec. 267. 16).

W isconsin has held that garnishment before 
execution is a provisional rem edy. Mahrle v. 
Engle, 261 Wis. 485. The Court is unable to find 
W isconsin authority that d irectly  rebuts the de­
fendant's attack on Chapter 267 of the statutes, 
but it has long been held that a state may by ap­
propriate legislation authorize the attachment, or 
garnishment of property within its bord ers , sub­
ject to the lim itations of the federal and state 
constitutions. An attachment or garnishment is 
not. a deprivation of property without due process  
of law within the meaning of constitutional p ro ­
visions, inasmuch as there must be an adjudica­
tion of the rights of the parties before  the property 
can be subjected to the plaintiff's cla im . 6 Am.
Ju r. 2d. p. 563, Sec. 267. 16 (1) does that very 
thing.

So far as the payment into court is concerned, 
no judicial p rocess  seem s to be involved. The 
payment amounts to nothing m ore than a m in is­
terial act to relieve the garnishee defendant of 
litigation and the funds com e into the possession



i«r of
*cord

17

of the court in custodia le g is . and until adjudica­
tion in the main action has occu rred  nothing m ore 
than a tem porary deprivation has occu rred . That 
deprivation is of statutory creation  in favor of the 
cred itor which was in existence at the time the 
debt was created. In this connection the language 
of Byrd v. R ector. 112 W. Va. 192. 81 A. L,. R .
1213. 1216. is particu larly appropriate:

"We think the answer to these propositions 
is that a defendant is not deprived of his p ro ­
perty by reason of the levy o f a copy o f the 
attachment upon a person who is indebted to 
him or who has effects in his custody belong­
ing to the defendant. The m ost that such p ro ­
cedure does is to deprive defendant of the p o s ­
session  of his property tem porarily  by estab­
lishing a lien thereon. Whether the defendant 

40 shall be deprived o f such property must depend
of course upon the plain tiff's  subsequent ab ili­
ty to obtain a judgment in personam  or in rem  
on his claim  against the defendant. If, after 
having full opportunity to be heard in defense 
of such claim , a judgment is rendered thereon 
against the defendant or his property, there 
has been no lack of due p ro ce ss . In the m ean­
time there has been no deprivation of p ro ­
perty. The attachment, quasi rem  in nature, 
has operated only to detain the property 
tem porarily , to await final judgment on the 
m erits  o f p lain tiff's  cla im . No constitutional 
right is im paired. M clnnes v. McKay. 127
Me..—LLQ, -L41 A._899 Until such judgment
is obtained, the defendant's property in the 
hands of a garnishee is immune from  the 
p lain tiff's  g r a s p ."



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The Court does not believe there is any need 
for a judicial act until the defendant’ s liability to 
the plaintiff is before the Court.

II

DEPRIVATION OF PROPERTY PRIOR
TO NOTICE

Defendant argues that her property can be 
taken before she rece ives  notice of the garnish­
ment. proceeding. This, of course, is based on 
the provisions set forth in Sec. 267.07 (1) which 
provide for serv ice  of a copy of the garnishee 
summons and complaint or a notice of such s e r ­
vice be served not later than 10 days after s e r ­
vice on the garnishee. It is argued that the 
garnishee defendant cannot only withhold defend­
ant's wages but can file  an answer asserting that 
he owes wages to the defendant and sim ultaneous­
ly pay a substantial portion of those wages to the 
clerk  before any notice o f the proceeding is given 
to the defendant. The argument concludes by 
stating that the defendant is given inadequate no- 

41 tice because such notice as he gets com es after
the purpose of the garnishment is a fu lly accom p­
lished fact. This is an erroneous view of the 
proce s s .

The tim eliness o f the notice is truly the basis 
of the defendant's lament. The important fact, 
how ever, is that the defendant does have notice 
even though it may be given after his property is 
in custodia le g is . Defendant's argument re jects  
the fact that nothing has happened to the defendant's 
title except it is tem porarily  in suspension pend­
ing a final adjudication on the debt owed the plaintiff.



The argument would deprive the garnishee defend­
ant of a means whereby involvem ent in litigation 
might be term inated in order that a defendant who 
contracted a debt with the provisional rem edy in 
existence may have the use of his property.

Whether a debtor should be relieved of gar­
nishment while an action fo r  debt is pending is 
one involving legislative or public policy . When 
the legislative prupose has been declared in un­
m istakable language, it is not within the province 
of the Court to interpose contrary view s of what 
the public need demands. W aitv . P ie rce . 191 
W is. 202. And the courts have nothing to do with 
the policy  o f laws, their only duty is to interpret 
the laws as enacted by the legislature. Waldum 
v. Lake Superior T. & T. R. Co. , 169 Wis. 137.

I l l

NO HEARING BEFORE DEPRIVATION
OF PROPERTY

The thrust of the defendant’ s argument on 
this point is that she is not afforded the right to 
challenge the withholding of her wages prior to 
judgment in the main action and that she loses  her 
property solely  upon the serv ice  of summons and 
verified  complaint in the garnishm ent action.
This argument amounts to a paraphrasing of the 
second argument. Since the provisional rem edy 
is constitutionally allowable a legitim ate basis 
for garnishment ex ists . The argument that de ­
fendant is afforded no challenge to the withholding 
o f her wages is ad hom inem . If the main action 
fa lls , so then does the garnishment and no p ro ­
perty belonging to the defendant is lost.



ra^c of
Record 20

The debt was contracted with the provisional 
rem edy in existence and becam e part of the con ­
tract. To deprive the plaintiff o f that remedy 
would be an impairment of contract and constitu­
tionally bad.

Defendant further argues that the main action 
involves a p rom issory  note and since p la in tiffs  
attorney is not personally privy to all the facts 
he should not be allowed to verify  the complaint 
and the plaintiff should be required to personally 
verify  the complaint. Just how this invades the 
defendant’ s constitutional rights is not made c lear. 
Certainly the defendant has adequate statutory 
rem edies, both investigative and procedural, 
which furnish an adequate basis for the p rotec­
tion of her rights.

IV

VIOLATION OF DUE PROCESS BECAUSE
LACK OF NOTICE IS NOT CONDITIONED
ON NEED FOR SUMMARY PROCESS

Defendant argues that absent a cla im  that a 
43 defendant is about to leave the em ploy of the gar­

nishee, cr is about to flee the state entirely, the 
em ployee 's  wages are a continuing asset against 
which the plaintiff can proceed  even after judg­
ment, that such an exercise, o f jurisd iction  is 
norm ally authorized only where jurisd iction  may 
not be established in any other manner or the 
defendant is taking steps which may frustrate the 
plaintiff's judgment.

It is supposed that garnishment was a le g is ­
lative incentive for the extension of cred it. A 
means whereby a seller might protect him self



IK c r i 21

against persons not w ell known to him. Whatever 
the purpose, the legislature provided the rem edy, 
and the defendant contracted her debt with the 
right of garnishment on the plaintiff’ s side. De­
fendant’ s argument begs the very  reason for the 
statute. Whether the reason for the statute still 
exists or has ceased to exist is a matter for le g is ­
lative determ ination.

V

UNCONSTITUTIONAL INTERFERENCE 
WITH A PPE LLA N T ’ S RIGHT TO GAINFUL 
EMPLOYMENT - VIOLATION OF THE 
FOURTEENTH AMENDMENT TO THE 
UNITED STATES CONSTITUTION

Defendant cites Slaughter-House Cases. 16 
Wall. 36 (1873). as authority for the proposition 
that the right to pursue a gainful em ploym ent 
unimpeded by arbitrary state in terference is a 
liberty  preserved  under the due p rocess  clause 
of the Fourteenth Amendment to the United States 
Constitution. Defendant goes on to argue that 
Chapter 267, W is. S tats., deprives defendant of 
incom e earned without any dem onstration that 

44 there is a need for such deprivation. Further, 
that persons of low incom e cannot post the bond 
in the amount of one and one-half tim es the sum 
in dispute and that, therefore, this rem edy is 
illu sory ; that the deprivation of incom e is the 
m ost d irect in terference with the em ploym ent r e ­
lationship, and that garnishm ent may cause an 
em ployee to be discharged by an em ployer.

Again, whether a cred itor should be deprived 
of the provisional rem edy in the case of a poor



Pagp of
Record 22

person is a matter for legislative determ ination. 
As m atters now stand the rem edy does not exist 
until credit has been extended. If the rem edy is 
drastic it behooves the defendant to refrain  from  
contracting debts beyond her ability to pay. C e r ­
tainly this Court is without authority in law to 
override the legislative policy  declared in Chapter 
267, W is. Stats. There is nothing arbitrary about 
establishing a provisional rem edy in connection 
with the p rocess  of collecting a debt. Whether a 
need fo r  that rem edy exists is for the legislature 
to determ ine.

VI

DENIAL OF EQUAL, PROTECTION OF LAW

Defendant argues that Chapter 267 deprives 
the defendant of equal protection of law in violation 
of the Fourteenth Amendment to the United States 
Constitution because it perm its illegal d iscrim in a ­
tion between persons in s im ila r  circu m stances. 
This argument is based upon the preposition that 
Sec. 267.22, W is. S tats., perm its garnishment 

45 of salaries and wages of public o ffice rs  and em ­
ployees after judgment only.

Chapter 267 does treat public em ployees d if­
ferent than m em bers of the public at large as 
stated by the defendant. It has been held that 
this is a proper c lassifica tion . 4 O .A .G , 783.
The Court agrees with that opinion. The continu­
ity of the public business may very  w ell be the 
reason why garnishment may not lie against a 
public em ployee until afler judgment. That rea ­
son may lend support to the defendant’ s previous



I l l  of
Mcord 2 3

argument concerning in terference with her em ­
ployment but it does not destroy  the reason for 
the c lassifica tion . The validity of differentiating 
between public and private em ployees effectively  
destroys defendant's argument in this resp ect.

CONCLUSION

The judgment of the County Court of M ilwau­
kee County must be affirm ed, and plaintiff's 
counsel w ill accord ingly prepare an appropriate 
order for judgment, submit the same to counsel 
for the defendant for approval as to form , and 
thereafter offer the same for  signing and entry.

Dated at Milwaukee, W isconsin, this 15th day 
of M arch, 1967.

BY THE COURT:

Lai—George D, Young 
C ircuit Judge



24

Notice of Appeal to Supreme Court

(Formal Parts Omitted)

P lease take notice that the defendant-appellant, Chris­
tine Sniadach, does hereby appeal to the Supreme Court 
of the State of Wisconsin from the Order entered herein on 
the 18th day of April, 1967 by the Honorable George D. 
Young, Circuit Court Judge In and For Milwaukee County 
Branch Number One thereof, which Order affirmed the 
judgment of the Honorable Thaddeus J. Pruss, County 
Judge In and For Milwaukee County, Branch Number Six 
thereof, said judgment holding Wisconsin’s garnishment 
before judgment statutes constitutional and not in viola­
tion of defendant-appellant’s equal protection and due 
process guarantees.

Dated this 18th day of April, 1967.

/ s /  T homas M. J acobson 
T homas M. J acobson 

Defendant-Appellant’s Attorney

To: S heldon D. F rank, E sq., Plaintiff’s Attorney,
135 West Wells Street,
Milwaukee, Wisconsin
Clerk o f  C ircuit Court, Milwaukee
County, Milwaukee, Wisconsin



INDEX TO APPENDIX

R ecord  App. 
Page Page

DECISION OF CIRCUIT
COURT ................................................ 36-45 101

GARNISHMENT SUMMONS ................  2 110

GARNISHMENT COMPLAINT ...........  7 113

GARNISHEE ANSWER ...........................  8 115

ORDER TO SHOW CAUSE ...........  9-10 116

ORDER COUNTY C O U R T ......... .. 17-18 118

NOTICE OF APPEAL TO
CIRCUIT COURT ................................  12 120

ORDER CIRCUIT COURT ................  47 121

NOTICE OF APPEAL TO
SUPREME COURT .............................. 49 122



26

And afterwards, to-wit on the 8th day of December, 
A.D. 1967, the same being the 61st day of said term, the 
judgment of this Court was rendered in words and figures 
following, that is to say:

Opinion of Supreme Court of Wisconsin

F amily F inance Corp. of B ay V iew ,

Respondent,
—v.—

Christine S niadach, alias,
Appellant,

M iller H arris I nstrument Co.,

Garnishee Defendant.

Opinion by Chief Justice Currie
This cause came on to be heard on appeal from the 

judgment of the Circuit Court for Milwaukee County and 
was argued by counsel. On consideration whereof, it is 
now here ordered and adjudged by this Court, that the 
order of the Circuit Court for Milwaukee County herein be, 
and the same is hereby affirmed. (Justices Heffernan and 
Wilkie dissent. Opinion filed.)



27

Opinion of Supreme Court of Wisconsin

No. 64
August Term, 1967

S tate of W isconsin— I n S upreme Court

F amily F inance Corp. of B ay V iew ,

Respondent,
—v.—

Christine S niadach, alias,
Appellant,

M iller H arris I nstrument Co.,
Garnishee Defendant.

A ppeal from an order of the circut court for Milwaukee 
county: George D. Y oung, Circuit Judge. Affirmed.

Plaintiff finance corporation instituted a garnishment 
action in the county court of Milwaukee county naming 
Christine Sniadach as defendant and Miller Harris Instru­
ment Co. as garnishee. Both defendant and garnishee were 
served with copies of the verified garnishee complaint and 
the garnishee summons on November 21, 1966.

The garnishee complaint alleged that: a summons had 
been issued in an action by plaintiff finance corporation 
against defendant; judgment had not yet been entered; the 
action was one to recover damages upon a promissory note; 
and the amount of plaintiff’s claim against defendant was 
$420 above all offsets. On November 30, 1966, the garnishee 
filed its answer in which it stated it had wages of $63.18 
in its control belonging to defendant, and that it would



28

pay one half thereof to defendant as a subsistence allow­
ance and hold the other half subject to the further order 
of the court.

On December 23, 19G6, defendant served on plaintiff’s 
counsel and filed an order requiring plaintiff to show cause 
why the garnishment proceedings should not be dismissed 
for violating defendant’s rights under Art. I, Sec. 9 of the 
Wisconsin Constitution, and under the due process and 
equal protection clauses of the United States Constitution. 
A hearing was held on January 3, 1967, and on January 7, 
1967, the county court, Thaddeus J. Pruss, Judge, presid­
ing, entered its order upholding the constitutionality of 
Wisconsin’s garnishment before judgment statutes, secs.
267.02 (1) (a) 1, 267.05 (1), and 267.07 (1), Stats. 

Defendant then appealed from this order to the circuit
court. On April 18, 1967, the circuit court affirmed the 
county court’s order, and defendant has appealed from the 
circuit court’s order.

C urrie, C. J. Appellant attacks the constitutionality of 
Wisconsin’s garnishment before judgment statutes, secs.
267.02 (1) (a) 1, 267.05 (1), 267.07 (1), 267.16 (1), 267.18
(2), and 267.21, Stats., on a number of grounds based on 
injustices and deprivations which have been, or are likely 
to be, suffered by others, but which she has not personally 
experienced.

One such ground is that poor -wage earners may have 
their wages garnished in a situation where there is no 
merit to the claim for which the principal action has been 
instituted. As a result such wage earners either are forced 
to settle with the plaintiff by assigning future wages, or 
are deprived of their wages for a long period of time until 
the principal action can be tried and probable cause de-

Opinion of Supreme Court of Wisconsin



29

termined. Here, appellant’s indebtedness is on a note, and 
her affidavit in support of the order to show cause con­
tains no allegation that she is not indebted thereon to 
plaintiff.

Another alleged ground of unconstitutionality is that 
sec. 267.18 (2) (a), Stats.,1 makes no accommodation for 
defendants with more than one dependent. However, ap­
pellant received the benefit of the maximum subsistence 
allowance of one half of the amount of her garnished wages, 
and her affidavit does not allege how many dependents, if 
any, she has.

Another alleged ground of unconstitutionality is that 
sec. 267.21, Stats., which permits a defendant to post a 
bond and secure the release of his garnished property, 
denies equal protection of the laws to persons of low in­
come. Appellant has made no showing that she is a person 
of low income and unable to post a bond.

A further alleged ground of unconstitutionality is that 
the garnishment before judgment statutes threaten the 
gainful employment of many wage earners. It is claimed 
that many employers discharge garnished employees for 
being unreliable. Appellant, however, has made no show­
ing that her own employer reacted in this manner. 1

Opinion of Supreme Court of Wisconsin

1 Sec. 267.18 (2) (a ). Stats., provides: “ When wages or salary 
are the subject of garnishment action, the garnishee shall pay over 
to the principal defendant on the date when such wages or salary 
would normally be payable a subsistence allowance, out of the 
wages or salary then owing, in the sum of $25 in the case of an 
individual without dependents or $40 in the case of an individual 
with dependents; but in no event in excess of 50% of the wages 
or salary owing. Said subsistence allowance shall be applied to 
the first wages or salary earned in the period subject to said 
garnishment action.”



3 0

Still a further ground of attack is the provision in sec. 
267.07 (1), Stats., which affords ten days’ time to plaintiff 
to serve the garnishee summons and complaint on defendant 
after service of same on the garnishee. Here, appellant 
was served on the same day as the garnishee.

It is a long-accepted rule that a party may not urge the 
unconstitutionality of a statute upon a point not affecting 
his or her rights.2 In State ex rel. Kellogg v. Currens3 the 
challenging party presented 11 grounds of attack upon the 
constitutionality of a statute. The court discussed the one 
which affected the challenger but refused to discuss the 
other ten, stating:

“ . . . Statutes are not to be declared unconstitutional 
at the suit of one who is not a sufferer from their un­
constitutional provisions . . . We cannot set aside the 
acts of the legislature at the suit of one who, suffering 
no wrong himself, merely assumes to champion the 
wrongs of others. . . . ” 4

Accordingly we will confine our consideration of appel­
lant’s grounds of attack upon the garnishment before judg­
ment statutes to those directly affecting her. The grounds 
of attack which will thus be considered are:

Opinion of Supreme Court of Wisconsin

2 Scharping v. Johnson (1966), 32 Wis.2d 383, 395, 145 N.W.2d 
691; Joint School Dist. v. Boyd (1955), 270 Wis. 222, 226, 70 
N.W.2d 630; Milwaukee Boston Store Co. v. Amer. Fed. of H. IV. 
(1955), 269 Wis. 338, 357, 69 N.W.2d 762; Anderson v. State 
(1936), 221 Wis. 78, 89, 265 N.W. 210; State ex rel. Kellogg v. 
Currens (1901), 111 Wis. 431, 87 N.W. 561; 16 C.J.S., Constitu­
tional Law, p. 226, sec. 76(a).

3 Supra, footnote 2.
4 Id. at pp. 442-443.



3 1

(1) These statutes deprive appellant of her property 
without due process of law.

(2) Appellant is denied due process of law, because the 
statutes afford her no right to an immediate hearing to 
challenge the validity of the garnishment.

(3) The legislature has assumed judicial powers in vio­
lation of art. VII, sec. 2, Wis. Const.

(4) The garnishment before judgment statutes deny ap­
pellant equal protection of the laws because they subject 
wage earners to harsher summary process than other 
classes of debtors.

Deprivation of Property Without Due Process.

The garnishment before judgment proceedings do not 
involve any final determination of the title to a defendant’s 
property, but merely preserve the status quo thereof pend­
ing determination of the principal action. The defendant 
receives notice and a hearing before being permanently 
deprived of his or her property.

In Mclnnes v. McKay6 it was contended that Maine’s 
statute, which permitted attachment, without affidavit or 
bond, in advance of judgment, deprived the defendant of 
due process of law contrary to the fourteenth amendment 
of the United States Constitution. The relevant statute 
provided:

“All civil actions, except scire facias and other spe­
cial writs shall be commenced by original writs; which, 
in the Supreme Judicial Court, may be issued by the 5

Opinion of Supreme Court of Wisconsin

5 (1928), 127 Me. 110, 141 Atl. 699.



3 2

clerk in term time or vacation, and framed to attach 
the goods and estate of the defendant, and for want 
thereof to take the body, or as an original summons, 
without an order to attach goods and estate.” 6

The court held that this was
“ . . . not a deprivation without ‘due process of law’ for 

it is part of a process, which during its proceeding 
gives notice and opportunity for hearing and judg­
ment of some judicial or other authorized tribunal.” 7 8

It noted that the attachment merely created a temporary 
lien, which did not destroy the defendant’s title. The court 
also cited the United States Supreme Court’s statement 
in Rothschild v. Knight8 that to what actions the remedy 
of attachment may be given is for the legislature of a state 
to determine and its courts to decide.

Mclnnes v. McKay was affirmed by the United States 
Supreme Court in a per curiam decision9 10 11 on the authority 
of Ownbey v. Morgan10 and Coffin Brothers v. Bennett}1

Ownbey v. Morgan upheld the constitutionality of Dela­
ware’s foreign attachment law as not being a denial of 
due process even though it harshly provided that before 
the defendant could appear and defend he had to give 
security in the amount of the value of the property at­
tached. The court in its opinion declared:

“ The due process clause does not impose upon the 
States a duty to establish ideal systems for the ad-

6 Maine Rev. Stats. 1928, eh. 86, sec. 2.
7 Supra, footnote 5, at p. 116.
8 (1902), 184 U.S. 334, 341, 22 Sup. Ct. 391, 46 L.Ed. 573.
9 (1928), 279 U.S. 820, 49 Sup. Ct. 344, 73 L.Ed. 975.
10 (1921), 256 U.S. 94, 41 Sup. Ct. 433, 65 L.Ed. 837.
11 (1928), 277 U.S. 29, 48 Sup. Ct. 422, 72 L.Ed. 768.

Opinion of Supreme Court of Wisconsin



ministration of justice, with every modern improve­
ment and with provision against every possible hard­
ship that may befall. It restrains state action, whether 
legislative, executive, or judicial, within bounds that 
are consistent with the fundamentals of individual 
liberty and private property, including the right to be 
heard where liberty or property is at stake in judicial 
proceedings. . . . ” 12

Coffin Brothers v. Bennett involved a Georgia statute 
which authorized the superintendent of banks to issue an 
execution against the property of a stockholder of a de­
funct bank upon whom a stock assessment had been levied. 
Mr. Justice Holmes wrote the unanimous opinion for the 
court and stated:

“The objection urged by the plaintiffs in error seems 
to be that this section purports to authorize an exe­
cution and the creation of a lien at the beginning, 
before and without any judicial proceeding. But the 
stockholders are allowed to raise and try every pos­
sible defense by an affidavit of illegality, which, as 
said by the Supreme Court of Georgia, makes the so 
called execution ‘a mode only of commencing against 
them suits to enforce their statutory liability to de­
positors.’ A reasonable opportunity to be heard and 
to present the defence is given and if a defence is 
presented the execution is the result of a trial in Court. 
The Fourteenth Amendment is not concerned with the 
form. Missouri ex rel. Hurwitz v. North, 271 U. S. 40, 
42. The fact that the execution is issued in the first 
instance by an agent of the State but not from a Court,

12 Supra, footnote 10, at pp. 110-111,

Opinion of Supreme Court of Wisconsin



34

followed as it is by personal notice and a right to take 
the case into court, is a familiar method in Georgia 
and is open to no objection. . . . ” 13

While neither Ownbey v. Morgan nor Coffin Brothers v. 
Bennett involved garnishment before judgment statutes, 
their rationale, when cited by the United States Supreme 
Court as authority for affirming Mclnnes v. McKay be­
comes clear. It is that the creditor’s remedies involved, 
though harsh, did not deprive a man of his property with­
out notice and an opportunity to be heard.

The ability to place a lien upon a man’s property, such 
as to temporarily deprive him of its beneficial use, with­
out any judicial determination of probable cause dates back 
not only to medieval England but also to Roman times.14 15 
In regard to the constitutional relevance of antiquity, Mr. 
Justice Holmes has stated:

“The Fourteenth Amendment, itself a historical 
product, did not destroy history for the States and 
substitute mechanical compartments of law all exactly 
alike. If a thing has been practiced for two hundred 
years by common consent, it will need a strong case 
for the Fourteenth Amendment to affect it, as is well 
illustrated by Ownbey v. Morgan, 256 U. S. 94, 104, 
112. ”  16

Opinion of Supreme Court of Wisconsin

13 Supra, footnote 11, at p. 31.
141 Wade on Attachment (1886), pp. 19-22, sec. 1.
15 Jackman v. Rosenbaum Co. (1922), 260 U.S. 22, 31, 43 Sup. Ct. 

9, 67 L.Ed. 107. See also Frank v. Maryland (1959), 359 U.S. 360, 
370, 79 Sup. Ct. 804, 3 L.Ed.2d 877, in which Mr. Justice Frank­
furter cites Jackman and Ownbey as to the legal significance of a 
long and consistent history of state practice.



35

We deem a West Virginia decision, which dealt with a 
before judgment garnishment, to be apposite. In Byrd v. 
Rector16 the nonresident defendant, who had been gar­
nished before judgment, argued that he had been denied 
due process because the plaintiff had not been required 
to post a bond before the garnishment. The court stated:

“We think the answer to these propositions is that 
a defendant is not deprived of his property by reason 
of the levy of a copy of the attachment upon a person 
who is indebted to him or who has effects in his cus­
tody belonging to the defendant. The most that such 
procedure does is to deprive defendant of the posses­
sion of his property temporarily by establishing a 
lien thereon. Whether the defendant shall be deprived 
of such property must depend of course upon the 
plaintiff’s subsequent ability to obtain a judgment in 
personam or in rent on his claim against the defen­
dant. If, after having full opportunity to be heard 
in defense of such claim, a judgment is rendered 
thereon against the defendant or his property, there 
has been no lack of due process. In the meantime 
there has been no deprivation of property. The at­
tachment, quasi rem in nature, has operated only to 
detain the property temporarily, to await final judg­
ment on the merit’s [sic] of plaintiff’s claim. No con­
stitutional right is impaired. Mclnnes v. McKay, 
(Me.) 141 Atl. 699. Until such judgment is obtained, 
the defendant’s property in the hands of a garnishee 
is immune from the plaintiff’s grasp. Under no cir­
cumstances could it be converted into cash and applied 
on the plaintiff’s demand prior to final adjudication 16

Opinion of Supreme Court of Wisconsin

16 (1932), 112 W. Va. 192, 163 S.E. 845.



36

of the merits of the controversy between plaintiff and 
defendant. Now, if pending such determination, the 
defendant is inconvenienced because he is temporarily 
deprived of the possession and use of his property in 
the hands of the garnishee, the defendant may acquire 
possession by giving bond, for which provision is made 
by Official Code, 38-7-20. We find no error under this 
point.” 17

In view of the aforecited authorities, we determine that 
Wisconsin’s garnishment before judgment statutes do not 
deprive appellant of her property without due process of 
law.

Failure of Garnishment Statutes to Afford Appellant 
an Immediate Hearing

Sec. 267.16 (1), Stats., provides:

“No trial shall be had of the garnishment action 
until the plaintiff has judgment in the principal action 
and if the defendant has judgment the garnishment 
action shall be dismissed with costs.”

Appellant contends that the failure of the garnishment 
statutes to afford her an immediate hearing on the pro­
priety of the garnishment constitutes a denial of due 
process.

However, despite the fact that the garnishment statutes 
do not grant to appellant the right of judicial review of 
the propriety of the garnishment action prior to trial of 
the principal action, Wisconsin case law establishes that 
she can obtain such judicial review.

17 Id. at p. 198. See also 16 Am. Jur. 2d, Constitutional Law, 
p. 980, sec. 576.

Opinion of Supreme Court of Wisconsin



37

In Orton v. Noonan18 the court stated in regard to gar­
nishment before judgment:

“ . . . the court, without the aid of any express 
statutory provision, lias a general power to control 
and regulate the proceeding upon summary process 
of this nature, so as to correct or prevent any abuse 
or misuse of such process, and that the defendant 
may, in some proper form, contest the truth of the 
grounds alleged by the plaintiff for obtaining it.” 19

Thus the court’s power to control its process is inherent 
and requires no statutory authorization.

This court in Cliernin v. International Oil Co.20 re­
affirmed the right of a defendant to move to quash or dis­
miss the garnishment action to the point of a judicial 
ascertainment that a good-faith controversy exists. The 
procedure approved therein was a motion for summary 
judgment dismissing the garnishment action on the ground 
that the complaint in the principal action failed to state 
a cause of action “ for damages founded upon contract” 
as required by then sec. 267.01 (3), Stats. Such require­
ment is now to be found in present sec. 267.02 (a).

Thus potential abuses of garnishment before judgment 
are subject to judicial review before trial of the principal 
action. Moreover, a garnishment without probable cause 
can be the basis of a suit for malicious prosecution.21 AVe, 
therefore, find no denial of due process in the failure of 
the garnishment statutes to contain a provision for judi­
cial review of the propriety of a garnishment action prior

18 (1871), 27 AVis. 572.
19 Id. at p. 579.
20 (1952), 261 AVis. 308, 52 N.AV.2d 785.
21 Novick v. Becker (1958), 4 AVis. 2d 432, 90 N.AV.2d 620.

Opinion of Supreme Court of Wisconsin



3 8

to trial of the principal action, inasmuch as such right 
exists independently of statute.

Assumption of Judicial Powers 
Sec. 267.04, Stats., provides in part as follows:

“ (1) Upon payment to the clerk of court of a clerk’s 
fee of $2 and a suit tax of $1, the clerk shall issue a 
garnishee summons . . .

“ (2) The garnishee summons shall be substantially 
in the following form:

U

“ YOU ARE ORDERED TO RETAIN SUCH PROPERTY [belong­
ing to the defendant] a n d  m a k e  n o  p a y m e n t , e x c e p t

FOR SUBSISTENCE ALLOW ANCE IF A N Y , TO TH E PRINCIPAL

DEFENDANT PEN DIN G TH E FU R TH ER ORDER OF TH E  COURT.
M

“ (3) A garnishment action shall be commenced by 
the service of a garnishee summons and annexed veri­
fied complaint.”

In regard to the complaint, sec. 267.05 (1), Stats., pro­
vides :

“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), the amount of the plaintiff’s claim against 
the defendant, above all offsets, known to the plain­
tiff, and that plaintiff believes that the named gar­
nishee is indebted to or has property in his posses­
sion or under his control belonging to the defendant 
(naming him) and that such indebtedness or property

Opinion of Supreme Court of Wisconsin



is, to the best of plaintiff’s knowledge and belief, not 
exempt from execution.”

The plaintiff must file with or mail to the clerk of court 
a copy of both the garnishee summons and complaint be­
fore serving the garnishee-defendant.22 23 24 We deem a more 
accurate statement of appellant’s position to be that the 
legislature has attempted to unconstitutionally vest judi­
cial powers in an administrative officer.

This court in 1927 in State v. Van Brocklin23 upheld the 
constitutionality of a state statute which conferred power 
on a clerk of court to issue a search warrant upon deter­
mining probable cause against the contention that this 
violated art. VII, sec. 2, Wis. Const. The court quoted 
with approval from the Alabama case of Kreulhaus v. 
Birmingham24 as follows:

“ ‘ . . .  it was not the intention of the framers of 
the Constitution to deny to the Legislature the power 
to confide to ministerial officers, who do not consti­
tute a part of the judiciary, properly so called, many 
duties involving inquiries in their nature judicial.’ ” 25

While some members of this court question some of the 
reasoning employed by the court to reach the result in 
State v. Van Brocklin, we approve of the holding that some 
duties involving inquiries judicial in their nature may be 
delegated to administrative officers where the acts of such 
officers are later subject to judicial review.

22 Sec. 267.10, Stats.
23 (1927), 194 Wis. 441, 217 N.W. 277.
24 (1909), 164 Ala. 623, 51 So. 297.
25 Id. at p. 629.

Opinion of Supreme Court of Wisconsin



40

In Central Loan & Trust Co. v. Campbell26 the United 
States Supreme Court considered the argument that a 
territorial statute of Oklahoma was void, because it al­
lowed a probate judge to issue a writ of attachment, while 
the organic act of the territory vested all common law- 
jurisdiction in the Supreme Court and District Courts of 
Oklahoma. The court rejected this argument, and stated:

“On the face of the Oklahoma statute it is apparent 
that it is required as a prerequisite to the issuance 
of an attachment that the affidavit, in support there­
of, shall simply state the particular ground for at­
tachment mentioned in the act, and therefore that the 
granting of an order for attachment does not involve 
the discharge of a judicial function, but merely the 
performance of a ministerial duty, that is, the com­
parison of the language of the affidavit with the terms 
of the statute . . .  It is elementary that where the 
ground of attachment may be alleged in the language 
of the statute, the authority to allow the writ need 
not be exercised by the judge of the court, but may 
be delegated by the legislature to an official, such as 
the clerk of the court.” 27 28

As appears from the prior quotation herein from Coffin 
Brothers v. Bennett™ the United States Supreme Court 
also found unobjectionable the fact that the execution had 
been issued by the state superintendent of banks instead 
of a court. However, the court was there concerned with 
the due process clause of the fourteenth amendment rather

Opinion of Supreme Court of Wisconsin

26 (189 9), 173 U.S. 84, 19 Sup. Ct. 346, 43 L.Ed. 623.
27 Id. at pp. 95-96.
28 Supra, footnote 11.



4 1

than the issue of unconstitutional delegation of judicial 
power contrary to a state constitution.

We find no merit to appellant’s contention that sec. 267.04, 
Stats., violates art. VII, sec. 2, Wis. Const.

Denial of Equal Protection of the Laws
Appellant’s brief asserts that the garnishment before 

judgment statutes subject wage earners to harsher sum­
mary process than other classes of debtors. However, any 
debtor, wage earner or not, is subject to these statutes. 
For example, bank accounts of businessmen and corpo­
rations are subject to garnishment before judgment. It 
may be argued generally that the effect of garnishment 
before judgment is harsher on wage earners than other 
classes of debtors. However, appellant has not set forth 
how these statutes, as applied to her own particular 
situation, have denied her equal protection of the laws. 
We decline to consider this argument of denial of equal 
protection in the absence of facts substantiating such con­
tention.

Pending Legislation
This court is fully cognizant of the fact that many undue 

hardships have resulted from the operation of Wisconsin’s 
before judgment garnishment statutes in the cases where 
wages and salaries of employees have been garnished. We 
are pleased that there is pending before the present legis­
lature legislation that will remedy these abuses.

On November 14, 1967, the assembly passed by a vote 
of 89 to 5 Substitute Amendment 1, to Bill No. 454, which 
bars garnishment before judgment of the wages or salary 
of the principal defendant. The State Senate now has 
this measure before it.

Opinion of Supreme Court of IFisconstn

By the Court.—Order affirmed.



42

Dissenting Opinion of Supreme Court of Wisconsin

(Filed December 8, 1967)

STATE OF WISCONSIN 
I n S upreme Court 

August Term, 1967 
No. 64

F amily F inance Corp. of B ay V iew ,

Respondent,
— v . —

Christine S niadach, alias,
Appellant,

M iller H arris I nstrument Co.,

Garnishee Defendant.

H effernan, J. (dissenting) The majority opinion would 
lead one to believe that garnishment before judgment is 
a venerable practice of Anglo-Saxon jurisprudence and 
should be accorded the imprimatur of time. Yet, the fact 
of the matter is that this is a rather new development in 
Wisconsin law. The excellent brochure written by Paul L. 
Moskowitz for the Wisconsin Extension Law Department 
states:

“Chapter 267 of the Wisconsin Statutes (1959) 
comes from R.S. 1878, Section 2752. The statute in 
Wisconsin originally provided garnishment as a rem-



43

edy in aid of execution only. Many states still follow 
this law.” 1962 Wisconsin Lawyers’ Seminars, Wis­
consin Garnishment and Exemptions, p. 1.

Garnishment is strictly a statutory remedy. Markman v. 
Becker (1959), 6 Wis. 2d 438, 95 N.W. 2d 233. Thus, it is 
apparent that it is no great sacred bastion of the common 
law that is under assault in this case. The only question 
is whether legislative action has deprived the defendant 
and others similarly situated of their constitutional rights.

The majority concludes that the garnishment statute 
does not result in a deprivation of property. The rationale 
behind this is embodied in the majority’s quotation from 
Byrd v. Rector (1932), 112 W. Va. 192, 163 S.E. 845. The 
essence of that quotation is that there is no deprivation 
of the defendant’s property because the procedure places 
the defendant’s property in the hands of the law and not 
in the hands of the plaintiff until after judgment.

It strikes me that this reasoning is most unrealistic. 
The constitutional question is not whether defendant has 
lost his title to the property, nor whether another has 
gained its beneficial use. The test is whether he was de­
prived of his property. In the instant case no legal fiction 
can disguise the fact that, from the time of the service 
of the garnishee summons until the lien of that process 
is released, the defendant is unable to make any beneficial 
use of his wages other than the pittance which may be 
available to him either as an exemption or subsistence 
allowance. Moreover, the case of Byrd v. Rector is only 
of strained applicability in the present case. In that case 
an infant plaintiff, who had been injured by the explosion 
of a dynamite cap which had been negligently disposed 
of by a nonresident defendant, commenced a suit in tort

Dissenting Opinion of Supreme Court of Wisconsin



44

for his personal injury. Accordingly, an attachment was 
issued on the ground that the defendant was a nonresi­
dent. The Byrd Case furnishes a sound rationale in sup­
port of our attachment laws, and were the plaintiff’s at­
tack on the attachment procedures, ch. 2G6 of the Wis­
consin statutes, the citation would be more appropriate. 
Chapter 266 recognizes that attachment is an unusual 
remedy—to be resorted to only in special circumstances. 
It is designed to protect state residents from creditors 
whose conduct amounts to fraud or from foreign cred­
itors who have assets within the state. The Byrd Case 
situation is clearly contemplated by sec. 266.03(2) (a ):

“ (2) Tort Action. In tort actions the affidavit shall 
state that a cause of action in tort exists in favor of 
the plaintiff and against the defendant, that the dam­
ages sustained exceed fifty dollars specifying the 
amount claimed and either:

“ (a) That the defendant is not a resident of this 
state. . . . ”

The case of Oivnbey v. Morgan (1921), 256 U.S. 94, 109, 
41 Sup. Ct. 433, 65 L. Ed. 837, points out that the attach­
ment of the goods of a foreigner is to be treated uniquely 
and is dependent in part on the duty of a state to protect 
its own citizens in their claims against nonresident owners 
of property situate within the state. The Ownbey Case 
uses a rather quaint, archaic, and unacceptable rationale 
in concluding that there is no denial of due process when 
a debtor’s property is detained, stating:

“ [A] man who has property usually has friends and 
credit—and hence in its normal operation it must be 
regarded as a permissible condition; and it cannot be

Dissenting Opinion of Supreme Court of TTTscomsim



45

deemed so arbitrary as to render the procedure in­
consistent with due process of law. . . . ” P. 111.

This same case stressed the origins of the attachment 
procedure and pointed out that its purpose was to distrain 
the defendant’s property to assure the appearance of the 
defendant so that there could be a procedure in personam 
against him. It is clear that Ownbey v. Morgan has little 
relevance to the Wisconsin law which permits the gar­
nishment of wages of Wisconsin residents.

While McKay v. Mclnnes (1928), 279 U.S. 820, 49 Sup. 
Ct. 344, 73 L. Ed. 975, is relied upon by the majority, it 
appears that the United States Supreme Court without 
opinion merely affirmed the Maine court on the basis of 
Ownbey v. Morgan, supra, and Coffin Brothers v. Bennett 
(1928), 277 U.S. 29, 48 Sup. Ct. 422, 72 L. Ed. 768. As 
pointed out above, Ownbey is not applicable to this case. 
The Coffin Brothers opinion is a rather cursory one by 
Mr. Justice Holmes in which he justifies his conclusion on 
the basis that it is a “familiar method in Georgia.” This 
is hardly a persuasive rationale; and as pointed out above, 
it is specious reasoning to conclude that, because a debtor 
has a chance to be heard on the question of whether or 
not his property should be returned to him, he has not 
been deprived of his property in the interim. Moreover, 
Mr. Justice Holmes points out that the defendants “are 
allowed to raise and try every possible defense by an 
affidavit of illegality.” (Emphasis supplied.) The Wiscon­
sin statute provides for no such comprehensive mode of 
defense available at the inception of the suit.

While some of the reasoning in these cases is appro­
priate to the garnishment of property, it has little or no 
relevance to the garnishment of wages. The garnishment

Dissenting Opinion of Supreme Court of Wisconsin



46

of wages is uniquely a product of the accrual bookkeeping 
system which has only come to fruition in the twentieth 
century. Until recently, laborers were paid by the day 
and not by the week or month. Hence, the law of garnish­
ment in terms of historical precedent arose out of the 
garnishment of property other than wages. There is little 
pertinence in the majority’s statement that the right to 
place a lien upon a man’s property dates back to medieval 
England and Roman times. Accrued wages, in terms of 
the history of the law, are a new property right and should 
be treated by the law with that distinction in mind.

It should also be noted that until recently wages were 
totally exempt from garnishment. Rood on Garnishment 
(West’s, 1896), sec. 87, page 119, states the policy of the 
wage exemptions that was nearly universal until near the 
end of the nineteenth century:

“The policy of the law—the intent of the legislature 
in enacting these provisions—is too plain for argu­
ment. It was to secure to those who toil with their 
hands, or depend for their subsistence upon their per­
sonal earnings, a sufficient amount of the fruits of 
their labor to supply them and their families with the 
necessities of life and a few of the conveniences of 
modern civilization, free from the merciless grasp of 
their less needy creditors.”

It was not until the enactment of ch. 141 of the Laws 
of Wisconsin (1883) that the exemption for wages was in 
part abandoned.1

1 An earlier enactment, ch. 317, Laws of Wisconsin (1882), pro­
vided for an exemption of all wages for three months prior to the 
garnishment.

Dissenting Opinion of Supreme Court of TFjscomsmi



17

I would concede that it is not unconstitutional to deprive 
a defendant of his property, including wages, by garnish­
ment and to hold it in custodia legis for a limited period 
of time so that the creditor can be certain that the assets 
are there to satisfy its judgment when once obtained. 
Under the Wisconsin statutes, however, the plaintiff need 
not serve his summons on the defendant until ten days 
after he has served the garnishee. This is a clear denial 
of due process, for the wages of the defendant are dis­
trained without the necessity of notice to their equitable 
owner. As the majority opinion clearly points out, how­
ever, there is no allegation that this particular denial of 
justice took place in the instant case. It should be noted, 
however, that the very case relied upon by the court, Own- 
bey v. Morgan, supra, page 103, states that, in determining 
whether there is a denial of due process, the court is not 
confined to the particular case at hand but is to make its 
determination “ . . . with respect to the general effect and 
operation of the system of procedure established by the 
statutes.” While Ownbey takes the position that the un­
usual case of hardship should be overlooked in favor of 
the general statutory scheme, it is obvious that the con­
verse reasoning is equally applicable.

The defendant complains, however, that even though the 
notice is given simultaneously, i.e., by a concurrent service 
on both the principal defendant and the garnishee, never­
theless, the property is withheld unconscionably until there 
has been a trial of the principal action. The majority 
dismisses this contention by stating that it is in the in­
herent power of a court to prevent any abuse or misuse 
of the process and that the defendant may, as said in 
Orton v. Noonan, infra, “ in some proper form” contest the 
truth of the grounds alleged by the plaintiff.

Dissenting Opinion of Supreme t'ourt of Wisconsin



18

This court has defined that right to contest the plaintiff’s 
use of process in Chernin v. International Oil Co. (1952), 
2C1 Wis. 308, 52 X.W. 2d 7S5, and it is apparent that the 
defendant’s rights are in fact limited to the determination 
of whether a good faith controversy exists. Orton v. 
Noonan (1871), 27 Wis. 572, quoted by the majority, makes 
it clear that all the plaintiff has to do to satisfy this re­
quirement is the making and filing of an affidavit of in­
debtedness to the plaintiff. And Chernin v. International 
Oil Co. merely determined that where the complaint in the 
principal action alleges a cause of action for damages for 
breach of contract the garnishment action will not be 
dismissed.

Under the state of law as it now stands, unless the 
plaintiff’s complaint is demurrable or on its face fraudu­
lent there is no relief available to the defendant short of 
the trial of the principal action. There is no statutory or 
common law procedure whereby the defendant can in a 
timely or summary fashion “ raise . . . every possible de­
fense by an affidavit of illegality,” as described in Coffin 
Brothers v. Bennett, supra. The right to a prompt and 
summary defense on the merits that Mr. Justice Holmes 
found as a saving grace in Coffin is fatally absent in the 
instant case.

Nor do I consider the possibility of a malicious prose­
cution action to be much solace to a wage owner who has 
been oppressed by an improper garnishment procedure 
action. If he has the resources to commence a retaliatory 
action for damages, he most likely would have been able 
to successfully defend himself in a garnishment action. 
The majority reasoning is similar to that of Ownhey where 
the United States Supreme Court concluded that the de­
fendant’s property would not have been seized if he were

Dissenting Opinion of Supreme Court of Wisconsin



49

not a man of property and, hence, he should he able to 
take care ot himself. The circuity of the court’s reasoning 
is not acceptable to me.

I conclude that a major constitutional defect of the 
statute is its failure to provide for a mandatory trial on 
the merits within a limited and statutorily defined time 
following the seizure of the defendant’s wages.

I am in agreement with the majority’s point that the 
issuance of a garnishee summons by the clerk of court 
does not constitute the usurpation of judicial power. I am, 
however, in complete disagreement with the rationale by 
which it arrives at that conclusion. Its conclusion is sup­
ported by the reliance on two discredited cases. The first 
of these is State v. Van Brocklin (1927), 191 Wis. 441, 217 
N.W. 277. In this case the question was whether a statute 
which permitted the clerk of the Winnebago county court 
to issue a search warrant constituted the proper exercise 
of judicial power. The court in Van Brocklin found an 
implied authorization for such delegation of power in sec. 
23, art. VII, of the Constitution, which manifestly was 
designed to provide for the appointment of court commis­
sioners exercising the power of a judge in chambers. The 
court concluded that if the legislature had that power it 
undoubtedly had the residual power to authorize clerks 
of municipal courts to issue criminal warrants. It is sub­
mitted that this hardly follows. At any rate this court 
has subsequently, in White v. Simpson (1905), 28 Wis. 2d 
590, 137 N.W. 2d 391, clearly ruled that only a magistrate 
exercising judicial power is authorized to issue a warrant, 
making it clear that the question of probable cause is not 
to be left to an administrative officer. Giorclencllo v. United 
States (1958), 357 U.S. 480, 486, 78 Sup. Ct. 1245, 2 L. Ed. 
2d 1503, used the language, “The Commissioner must judge

Dissenting Opinion of Supreme Court of Wisconsin



50

for himself the . . . facts . . .  to show probable cause.” 
(Emphasis supplied.) The other case relied upon by the 
majority, Kreulhaus v. Birmingham (1909), 164 Ala. 623, 
51 So. 297, held that the statute that permitted a clerk to 
issue warrants of arrest did not confer any judicial power. 
The rationale of the Alabama court was:

“The statute in this case conferred no power upon 
the clerk to finally hear and determine, nor even to 
commit to bail, but only to issue warrants, which must 
be construed to authorize him to issue warrants on 
probable cause. . . . ” Pp. 629-630.

It is obvious that following the White v. Simpson ra­
tionale, this case is equally repugnant to our now accepted 
standards of due process.

I agree with the court’s rationale that the only deter­
mination required of the clerk is a ministerial one, that 
is, it is only necessary for the plaintiff to set forth in the 
language of the statute the basis upon which the summons 
is requested. This is not a determination of probable 
cause. It is not a judicial function and is not constitu­
tionally prohibited. I object, however, to the majority’s 
failure to rest their position upon this perfectly good 
argument. Instead they have chosen to shore up this ra­
tionale with outworn precedents of extremely dubious 
authority, and by so doing have put the ruling of White 
v. Simpson in jeopardy.

In view of my views set forth above, I must respectfully 
dissent from the court’s opinion. I am convinced that the 
plaintiff has established that she is personally aggrieved 
to the extent that she may properly raise at least some 
of the constitutional issues which she presses. Since I 
find her complaint has validity as set forth above, I would

Dissenting Opinion of Supreme Court of Wisconsin



51

hold the garnishment statute unconstitutional in that it 
deprives the defendant of property—wages—without due 
process of law—in that she lacks any method of insuring 
a reasonably prompt adjudication of her rights and the 
return of her property. I also dissent because the majority 
opinion has failed to state adequately what I conceive to 
be its true position—that the affirmance of the trial court 
results not from a conviction that the trial court is cor­
rect on the constitutional question, but rather on the fact 
that this particular plaintiff has not been aggrieved. The 
court was no doubt influenced by the legislative progress 
of the bill that would end the garnishment of wages prior 
to judgment. There is an understandable willingness to 
“let sleeping dogs lie” when there exists the strong pos­
sibility that the legislature will shortly correct this harsh 
and unconstitutional legislation. I believe, however, that 
this court would be remiss in its constitutional duties if 
it did not hold a statute unconstitutional if in fact it ap­
pears to be so, even though the legislature is about to 
fashion a correction. Since I believe the statute to be in 
part unconstitutional, I would reverse.

1 am authorized to state that Mr. Justice Wilkie joins 
me in this dissent.

Dissenting Opinion of Supreme Court of Wisconsin



52

Motion for Rehearing Denied

And afterwards, to-wit on the 27th day of February, 
A. D. 1968, the same being the 97th day of the August, 1967 
Term, the following proceedings were had in said cause in 
this Court:

F amily F inance Corp. of B ay V iew ,

Respondent,
— v . —

Christine S niadach, alias,
Appellant,

Miller Harris I nstrument Co.,

Garnishee Defendant.

The Court being now sufficiently advised of and con­
cerning the motion of the said appellant for a rehearing 
in said cause, it is now here ordered that said motion be, 
and the same is hereby, denied with costs.



53

Certification of Record

I, Franklin W. Clarke, Clerk of the Supreme Court of 
the State of Wisconsin, do hereby certify that the attached 
printed appellant’s appendix in No. 64, August Term, 1967, 
in the Wisconsin Supreme Court, is a true copy of the 
original on file in this Court, and that the transcript of 
proceedings in said cause in this Court is correct and com­
plete, and that this return constitutes a complete copy of 
the record before the Supreme Court of Wisconsin in said 
cause.

In W itness W hereof, I have hereunto set my 
[seal] hand and affixed the seal of said Court, at

Madison, Wisconsin, this 25th day of April, 
1968.

/ s /  F ranklin W. Clarke

Clerk of Supreme Court 
State of Wisconsin



54

Order Granting Certiorari

I n the S upreme Court of the U nited S tates 

October Term, 1967

Christine S niadach, Petitioner,

—v.—

F amily F inance Corporation of Bay View 
and Miller H arris I nstrument Company.

The petition for writ of certiorari is granted and the 
case is placed on the summary calendar.

V

( b