Sniadach v Family Finance Corp Petition for Writ of Certiorari

    I n  t h e

i5>ttpnmtr (Enurt of tip United States
October T erm, 1967 

No..............

Christine S niadach,
Petitioner,

— v.—

F amily F inance Corporation of B ay V iew 
and M iller H arris I nstrument Company.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF WISCONSIN

Jack Greenberg 
James M. N abrit, III 
L eroy D. Clark 
Gabrielle A. K irk 
P hilip G. S chrag

10 Columbus Circle 
New York, New York 10019

T homas M. Jacobson

110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Attorneys for Petitioner

W illiam F. Y oung, Jr. 
Of Counsel



I N D E X

PAGE

Citation to Decisions Below ............................................  1

Jurisdiction .........................................................................  2

Question Presented ............................................................ 2

Constitutional and Statutory Provisions Involved.......  2

Statement .............................................................................  3

How the Federal Question Was Raised and Decided 
Below ...............................................................................  4

R easons foe Granting the W r it :

I. Certiorari Should be Granted to Review an 
Issue of National Importance: The Widespread 
Use of Pre-Judgment Wage Garnishments to 
Compel Wage Earners to Make Favorable 
Settlements With Their Alleged Creditors 
Without Hearing or Trial ..................................  6

II. The Wisconsin Procedure for Obtaining Pre- 
Judgment Wage Garnishments Deprives Em­
ployees of Due Process of Law ..........................  13

Conclusion 22



A ppendix A :

Order to Show Cause.................................................... la

Affidavit of Thomas M. Jacobson ........................  2a

Order of County Court ..........................................  3a

Notice of Appeal to Circuit C ourt..........................  5a

Order of Circuit Court ............................................  6a

Notice of Appeal to Supreme C ourt....................... 7a

Memorandum Decision of Circuit Court ............... 8a

Opinion of Supreme Court of Wisconsin ............  17a

Dissenting Opinion of Supreme Court of Wis­
consin ........................................................................  33a

Motion for Rehearing Denied .................................  43a

A ppendix B :

Statutory Provisions Involved .................................  44a

11

PAGE



Ill

T able of A uthorities

Cases: page

Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845 (1932)
5,19, 20

Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915) 14
Coffin Bros. v. Bennett, 277 U.S. 29 (1928) .................14,18
Coffin Bros. v. Bennett, 164 Ga. 350,138 S.E. 670 (1927) 18

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 
(1950) ...............................................................................  15

Grannis v. Ordean, 234 U.S. 385 (1914) ....................... 15

Hovey v. Elliot, 167 U.S. 409 (1897) .............................  15

Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123 (1951) ......................................................  15

Mclnnes v. McKay, 127 Me. 110, 141 A. 699 (1928) ....18, 20,
21

McKay v. Mclnnes, 279 U.S. 820 (1928) ....................... 18

Noble State Bank v. Haskell, 219 U.S. 104 (1911) .......  21

Ownbey v. Morgan, 256 U.S. 94 (1921) ......................... 17

Scbroeder v. New York, 371 U.S. 208 (1962) ............... 15

Windsor v. McVeigh, 93 U.S. 274 (1876) ..................... 15

Statutes:

Ark. Stats. Ann. §31-501 (1947) ....................................... 16

Mont. Rev. Codes Ann. §93-4304 (1947) ....................... 16

Nev. Rev. Stat. §31.010 (1965) ........................................  7



IV

N. C. Gen. Stat. Ann. §1-440.2 (1963) ............................  7

N. C. Gen. Stat. Ann. §1-440.3 (1963) ............................  7

Ohio Rev. Code §2715.11 (1953) ......................................  7

S. D. Code §37.2802 (1939) .............................................. 7

Tenn. Code Ann. §23-601 (1955) ................................... . 7

Wis. Stat. Ann. §267.01 (1967 Pocket Part) .............  3

Wis. Stat. Ann. §267.02 (1967 Pocket Part) ......3,6,7,18

Wis. Stat. Ann. §267.04 (1967 Pocket Part) .............  6

Wis. Stat. Ann. §267.05 (1967 Pocket Part) ............. 3,6

Wis. Stat. Ann. §267.07 (1967 Pocket Part) ............. 3, 7

Wis. Stat. Ann. §267.13 (1967 Pocket Part) ............. 3

Wis. Stat. Ann. §267.16 (1967 Pocket Part) ............. 3, 7

Wis. Stat. Ann. §267.18 (1967 Pocket Part) .............  3,7

Wis. Stat. Ann. §267.20 (1967 Pocket Part) .............  3

Other Authorities:

Annunzio, Testimony to House Subcommittee on Con­
sumer Affairs, Hearing on the Consumer Credit 
Protection Act (1967) ..................................................  12

Bare, Testimony to House Subcommittee on Consumer 
Affairs, Hearings on the Consumer Credit Protec­
tion Act (1967) ............................................................. 9,11

Brunn, Wage Garnishment in California: A Study 
and Recommendations, 53 Cal. L. Rev. 1214 (1965) 12

Bureau of Labor Statistics, Fact Sheet No. 4-F, Debt 
Pooling and Garnishment in Relation to Consumer 
Indebtedness (1966) ...................................................... 12

PAGE



V

Caplovitz, The Poor Pay More (1967 ed.) ................... 20

Fisher, How Garnisheed Workers Fare Under Arbi­
tration, Monthly Labor Review (Dept, of Labor, 
May, 1967) .......................................................................  9

Gonzales, Con. Rec. (Feb. 1, 1968) ................................  21

Halpern, Cong. Rec. (Feb. 1, 1968) ..............................  9

Jablonski, “Wage Garnishment as a Collection De­
vice,” 1967 Wis. L. Rev. 759 .................................. 7, 8,10

Jackson, Testimony to the House Subcommittee on 
Consumer Affairs, Hearings on the Consumer Credit 
Protection Act (1967) ..................................................  11

Jacob, Usage of Wage Garnishment and Bankruptcy 
Proceedings in Four Wisconsin Cities, address de­
livered to the American Political Science Associa­
tion, September, 1966 .................................................... 9

Milwaukee Journal, December 10, 1966, §1, at 17, col. 4 10

National Industrial Conference Board Studies In Per­
sonnel Policy, No. 194 (1964) ....................................  10

Note, Garnishment in Kentucky— Some Defects, 45 
Ky. L. J. 322 (1956) ...................................................... 9

President Lyndon Johnson, Message to Congress on 
Poverty, March 14, 1967 ..............................................  8

Report No. 1040, House Committee on Banking and 
Currency, 90th Cong., 1st Sess. (1967) ..................... 12

Report of the National Advisory Commission on Civil 
Disorders (Bantam ed. 1967) ....................................  6

Reuss, Cong. Rec. (Feb. 1, 1968) ................................. . 13

Sullivan, Cong. Rec. (Feb. 1, 1968) ..............................  11

Wirtz, Testimony to the House Subcommittee on Con­
sumer Affairs, Hearings on the Consumer Credit 
Protection Act (1967) ..................................................  10

PAGE



I n  t h e

(ftmtrt nf tlw Itnitrti g ’tatpa
October T erm, 1967 

No..............

Christine S niadach,
Petitioner,

— v.—

F amily F inance Corporation of B ay V iew 
and M iller H arris I nstrument Company.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF WISCONSIN

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Wisconsin entered 
in the above-entitled case on December 8, 1967, rehearing 
of which was denied February 27, 1968.

Citation to Decisions Below

The order of the Milwaukee County Court of Wisconsin 
(R. 118-120) is unreported and is set forth in the appen­
dix, infra, p. 3a. The memorandum decision of the Mil­
waukee Circuit Court of Wisconsin (R. 101-110) is un­
reported and is set forth in the appendix, infra, p. 8a. 
The decision of the Supreme Court of Wisconsin (R. 126- 
148) is reported at 37 Wis.2d 163, 154 N.W.2d 259 (1967), 
and is set forth in the appendix, infra, p. 17a.



2

Jurisdiction

The judgment of the Supreme Court of Wisconsin was 
entered on December 8, 1967 (R. 126). Rehearing was 
denied on February 27, 1968 (R. 150).

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1257(3), petitioner having asserted below, and as­
serting here, deprivation of rights secured by the Consti­
tution of the United States.

Question Presented

Petitioner is a $65.00 per week wage earner. Half the 
wages due her were garnisheed before trial by plaintiff in 
a lawsuit against her. Under Wisconsin law, before peti­
tioner’s wages were garnisheed, she had no right to notice 
and hearing or other procedure for challenging the legal­
ity of the garnishment sought by plaintiff. The plaintiff 
did not have to show that without garnishment, he would 
be unlikely to obtain jurisdiction over petitioner or to 
collect a money judgment, nor did he have to show prob­
able cause to believe that petitioner owed him any money, 
nor any other reason purporting to justify denial of no­
tice and hearing. Does this procedure deny due process 
of law secured by the Fourteenth Amendment?

Constitutional and Statutory 
Provisions Involved 1 2

1. This case involves the Fourteenth Amendment to 
the Constitution of the United States.

2. This case involves Wis. Stats. Sections 267.01, 267.02, 
267.05, 267.07, 267.13, 267.16, 267.18, 267.20 (1967 Pocket 
Part). They are set forth in the appendix infra, p. 44a.



3

Statement

Petitioner Christine Sniadach is a wage earner and resi­
dent of Milwaukee, Wisconsin. The Family Finance Cor­
poration of Bay View (respondent here), alleging to be 
her creditor, commenced an action against her for $420.00 
in the Wisconsin courts.1 It also took advantage of the 
Wisconsin garnishment law, Wis. Stats. Sections 267.01 
et seq., to garnishee the wages due her from her employer. 
All plaintiff did to garnishee petitioner’s wages, and all it 
had to do, was file an attorney’s affidavit with the clerk 
of the County Court, alleging that a summons had been 
issued in an action by plaintiff against defendant, and 
that the action was founded upon a promissory note. The 
statute does not require an allegation that the defendant 
is about to leave the jurisdiction, that an attachment is 
necessary to obtain jurisdiction, or that but for the gar­
nishment the plaintiff may be unable ultimately to have 
execution upon a judgment, or any other reason purport­
ing to justify denial of notice and prior hearing. The 
clerk of the court, on the basis of an attorney’s affidavit, 
ordered petitioner’s employer to withhold wages due peti­
tioner.

On November 22, 1966, pursuant to the clerk’s summons, 
petitioner’s employer, the Miller Harris Instrument Co., 
withheld wages due petitioner in the sum of $31.59 and 
continues to withhold them. At no point has petitioner 
been granted a hearing on whether or not the garnish­
ment was proper, and the statute affords her none until 
the main action is tried. 1

1 The claim for $420.00 has not yet been decided because it has 
been stayed pending the outcome of this proceeding involving Wis­
consin’s pre-judgment garnishment law.



4

How the Federal Question Was Raised 
and Decided Below

Petitioner sought by order to show cause in the County 
Court to dismiss the garnishment on the ground that the 
Wisconsin procedure for pre-judgment garnishment de­
prived her of due process of law under the Fourteenth 
Amendment to the Federal Constitution. Her attorney 
alleged that the proceedings were “ in violation of defen­
dant’s constitutional rights under . . .  the United States 
Constitution, Fourteenth Amendment, in that defendant is 
being deprived of her property without due process of 
law.” Affidavit of Thomas M. Jacobson, dated December 
22, 1966 (R. 117). On January 7, 1967, Judge Thaddeus 
Pruss of the County Court held that “ the garnishment 
action in the instant proceedings does not violate defen­
dant’s constitutional rights under . . .  the United States 
Constitution 14th Amendment due process and equal pro­
tection” (R. 119).

On appeal to the Circuit Court of Milwaukee, petitioner 
argued that the garnishment statute “ deprives the defen­
dant of due process of law in violation of the fourteenth 
amendment to the United States Constitution because the 
defendant is given no hearing before being deprived of 
his property.” The Circuit Court affirmed on March 15, 
1967, stating that “ [defendant's argument rejects the fact 
that nothing has happened to the defendant’s title except 
it is temporarily in suspension pending a final adjudica­
tion on the debt owed the plaintiff” (R. 105).

In the Supreme Court of Wisconsin, petitioner again 
argued that the garnishment procedure violated due proc­
ess of law guaranteed to her by the Fourteenth Amend­
ment to the Federal Constitution. On December 8, 1967,



5

the Supreme Court of Wisconsin affirmed the decision be­
low holding that “Wisconsin’s garnishment before judg­
ment statutes do not deprive appellant of her property 
without due process of law” (R. 134). The Court quoted 
with approval the language of Byrd v. Rector, 112 W.Va. 
192, 163 S.E. 845 (1932):

[A] defendant is not deprived of his property by rea­
son of the levy of a copy of the attachment upon a 
person who is indebted to him or who has effects in 
his custody belonging to the defendant. The most that 
such procedure does is to deprive defendant of the 
possession of his property temporarily by establish­
ing a lien thereon . . . Until [a final] judgment is 
obtained, the defendant’s property in the hands of a 
garnishee is immune from the plaintiff’s grasp . . . 
(R. 134).

Two justices of the Wisconsin Supreme Court dissented, 
arguing that the reasoning of the majority was “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 deprived of his property” (R. 141) (emphasis in 
original).



G

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should be Granted to Review an Issue of 
National Importance: The Widespread Use of Pre- 
Judgment Wage Garnishments to Compel Wage Earners 
to Make Favorable Settlements With Their Alleged Cred­
itors Without Hearing or Trial.

“ Garnishment practices in many states allow creditors 
to deprive individuals of their wages through court action 
without hearing or trial. In about 20 states, the wages 
of an employee can be diverted to a creditor merely upon 
the latter’s deposition, with no advance hearing where the 
employee can defend himself. He often receives no prior 
notice of such action and is usually unaware of the law’s 
operation and too poor to hire legal defense.” Report of 
the National Advisory Commission on Civil Disorders 276 
(Bantam ed., 1968).

These words from the “Riot Commission” Report define 
the problem in this case. In a garnishment proceeding 
before judgment, a creditor or alleged creditor is per­
mitted to cause the wages of his alleged debtor to be 
turned over to the court or held by the employer pending 
the outcome of the main litigation between creditor and 
debtor. In Wisconsin an alleged creditor may avail him­
self of this preliminary remedy simply by alleging that 
the debtor owes him a sum due under a contract, Wis. 
Stats., Sections 267.02, 267.04, 267.05; he need not allege 
that the defendant is a nonresident, or is about to leave 
the jurisdiction, or has no property in the state other than 
his wages, or that an attachment is necessary, or anything 
else purporting to justify denial of notice and prior hear­



7

ing in order to obtain jurisdiction over the defendant. The 
debtor-defendant need not be notified that his wages have 
been garnisheed until 10 days after the garnishment. Wis. 
Stats. Section 267.07. The validity of the garnishment may 
not be tested until after the main action between plaintiff 
and defendant is tried. Wis. Stats. Section 267.16. The 
wages for only one salary period are subject to garnish­
ment, Wis. Stats. Section 276.02, and the defendant is 
entitled to receive from his employer a “ subsistence allow­
ance” of $25 or $40 if he has dependents (in no event to 
exceed 50% of the wages withheld), but this allowance is 
fixed at the specified levels regardless of whether the wages 
garnisheed are those owing for a week or a month, Wis. 
Stats. Section 267.18, and in any event, is “generally in­
sufficient to support the debtor for any one week.” Jablon- 
ski, “Wage Garnishment as a Collection Device,” 1967 Wis. 
L. Rev. 759, 767. Of forty-one jurisdictions permitting 
some sort of pre-judgment garnishment, only seventeen 
states, including Wisconsin, permit alleged creditors to 
deprive workers of their earnings without either a prior 
hearing or the demonstration of some special circumstances 
justifying summary relief.2 In these seventeen states, pre­
judgment garnishment is used routinely by finance com­
panies as a device to compel payments of debts; pre­
judgment garnishment is more properly characterized as 
a collection device than as a provisional remedy. See

2 In the other twenty-four jurisdictions, such garnishments are 
obtainable only upon a showing by the plaintiff that without the 
garnishment, his chance of collecting any judgment he might be 
awarded is small. In these jurisdictions, a plaintiff seeking to 
garnishee a defendant’s wages must show that defendant is a non­
resident, Ohio Rev. Code §2715.11, or that defendant has con­
cealed himself with intent to avoid service, Gen. Stat. of N.C. 
§1-440.2-3, or that defendant has absconded, Nevada Revised Stats. 
§31.010, or that defendant has secreted his property with intent to 
defraud, Tenn. Code Annot. §23-601, or that he has no other prop­
erty in the state, S. Dak. Code §37.2802.



8

Jablonski, “ Wage Garnishment as a Collection Device,”  
1967 Wis. L. Rev. 759.

Garnishment as a Weapon for Collection

“Hundreds of workers among the poor lose their jobs 
or most of their wages each year as a result of garnish­
ment proceedings. In many cases, wages are garnished by 
unscrupulous merchants and lenders whose practices trap 
the unwilling workers.” President Lyndon Johnson, Mes­
sage to Congress on Poverty, March 14, 1967. A  significant 
amount of study has been done on the use and effect of 
garnishment, and the results indicate that the President’s 
message is, if anything, an underestimation of the seri­
ousness of the problem. One study focused on the use of 
garnishment in four Wisconsin cities, and found that gar­
nishment (particularly pre-judgment garnishment) is used 
not only to secure payment of sums legitimately due, but 
to force alleged debtors to pay without contesting the debts 
in court.

In the four cities studied, money lenders (principally 
finance companies) and retailers were the two heaviest 
users of wage garnishments . . . Finance companies 
have the most developed system of collecting delin­
quent accounts. Within 10 days after a payment is 
due, they consider the debtor delinquent and begin 
efforts to collect. They make use of a large repertoire 
of collection methods including overdue notices, tele­
phone calls to his employer, calls to cosigners of his 
note (if any), repossession of the article purchased 
with the loan (if any), and then wage garnishment.
. . . When all other means of reaching the debtor have 
failed, garnishments usually succeed in forcing him 
to contact the creditor because he finds himself com­
pletely out of funds and his job endangered. Many



9

creditors will release the pay check to the debtor after 
a token payment plus the promise of modest weekly 
payments until the debt is repayed. The threat of 
another garnishment is used to force the debtor to 
complete his payments. H. Jacob, Usage of Wage 
Garnishment and Bankruptcy Proceedings in Four 
Wisconsin Cities, address delivered to the American 
Political Science Association, September, 1966, pp. 
7, 10.

Garnishment is an effective weapon in the arsenal of 
the finance companies not only because “ the individuals 
whose wages are being garnished are the very individ­
uals whose total wages are required for the payment of 
necessary living expenses: food, clothing, shelter, and 
medical expenses,” 3 but also because of the widespread 
practice among employers of firing workers whose wages 
are garnisheed. “ The debtor often may find himself un­
employed; employers are often unwilling to accept the 
additional expense of administering garnishments.” Re­
marks of Congressman Halpern, Cong. Rec., p. H689 (Feb. 
1, 1968). “ Some companies regard a single garnishment 
as grounds for discharge . . .  it is detested as an unmiti­
gated nuisance by employers to such an extent that even 
union contracts tacitly or specifically recognize the right 
of an employer to discharge an employee whose debts 
result in more than a prescribed number of garnishments 
within a specified period.” Note, Garnishment in Kentucky 
— Some Defects, 45 Ky. L. J. 322, 330 (1956). See Fisher, 
How Garnisheed Workers Fare Under Arbitration, 
Monthly Labor Review (Dept, of Labor, May 1967). Be­

3 Testimony of Clive W. Bare, Referee in Bankruptcy, Eastern 
District of Tennessee, to House Subcommittee on Consumer Affairs, 
Hearings on the Consumer Credit Protection Act (1967).



10

tween 100,000 and 300,000 American workers are fired 
from their jobs each year as a result of wage garnish­
ments. Testimony of Secretary Willard Wirtz to the 
House Subcommittee on Consumer Affairs, Hearings on 
the Consumer Credit Protection Act, p. 739 (1967). Thir­
teen percent of American manufacturing firms fire workers 
whose wages are garnisheed even once. National Industrial 
Conference Board Studies In Personnel Policy, No. 194, 
p. 38, Table 40 (1964). A  study of garnishments in Wis­
consin showed that 41% of employees in the sample were 
warned of dismissal if they were again garnisheed; 11% 
were fired forthwith, and in only 15% of the cases did 
the employers try to help the workers. Jablonski, “Wage 
Garnishment as a Collection Device,” 1967 Wis. L. Rev. 
759, 766, n. 29.

The most gross injustices in cases of discharge as a 
result of garnishment occur when the garnishments are 
of the pre-judgment type; there the defendant may have 
a perfectly good defense to the main lawsuit, or may not 
even be a debtor, but because he is denied a prior hearing 
he is threatened with being fired before he can contest 
the validity of the garnishment. It does not matter to 
the employer that the worker is innocent—the nuisance 
to the employer and his bookkeepers is as great. Only by 
settling immediately with the plaintiff can the employee 
remove the garnishment and retain his job security.4

Furthermore, in a significant proportion of the cases, 
the underlying debt is subject to a good defense, such as 
fraud, but the debtor is never able to raise this defense 
because he cannot afford to wait until trial. “What we

4 Cases have been documented in which employees were fired as 
soon as their wages were garnisheed, and were able later, at trial, to 
show that they were not liable. Milwaukee Journal, December 10, 
1966, §1, at 17, col. 4, cited in Jablonski, supra, at 769, n. 42.



11

know from our study of this problem [in the hearings of 
the House Subcommittee on Consumer Affairs] is that in 
a vast number of cases the debt is a fraudulent one, saddled 
on a poor, ignorant person who is trapped in an easy 
credit nightmare in which he is charged double for some­
thing he could not pay for even if the proper price was 
called for, and then hounded into giving up his pound of 
flesh, and being fired besides.” Remarks of Congress- 
woman Leonor Sullivan, Chairlady of the House Subcom­
mittee on Consumer Affairs, Cong. Rec. p. H688 (Feb. 1, 
1968). Garnishment “ is mainly the weapon not of the 
honest merchant or lender but of the predatory credit 
sellers who hook a poor, ignorant worker on credit terms 
which are as devastating to that worker as the dope habit 
— something he can never seem to lick . . . [W]eep for 
the inhumanity exposed [in our hearings] about the sewer 
of the so-called easy credit racket—not legitimate business 
but the blood suckers of commerce.” Ibid.

Garnishment and Personal Bankruptcies

It has been established beyond doubt that garnishment 
— and the accompanying threat of loss of employment— 
is the triggering cause of most bankruptcies in the United 
States.5 Federal bankruptcy referees have found upon 
examination of creditors and debtors that “between 60 
and 70 percent of bankruptcy filings are the direct result 
of wage garnishments. Many individuals are being driven 
into bankruptcy who actually owe relatively small sums, 
but whose wages are under attachment.” Testimony of

5 In Fiscal 1967, there were 208,329 bankruptcies filed in United 
States District Courts. Testimony of Royal E. Jackson, Chief, 
Bankruptcy Division, Administrative Office, U. S. Courts, to the 
House Subcommittee on Consumer Affairs, p. 416 (1967). 92% of 
them were filed by consumers rather than businesses. Ibid.



12

Clive W. Bare, Referee in Bankruptcy, Eastern District 
of Tennessee, to House Subcommittee on Consumer Affairs, 
Hearings on Consumer Credit Protection Act, p. 415 
(1967). A  direct correlation has been found between the 
harshness of state garnishment laws and the incidence of 
tilings in bankruptcy.6 Bureau of Labor Statistics, Fact 
Sheet No. 4-F, Debt Pooling and Garnishment in Rela­
tion to Consumer Indebtedness (1966); see Brunn, Wage 
Garnishment in California: A Study and Recommenda­
tions, 53 Cal. L. Rev. 1214 (1965).

In short, the garnishment procedure is a harsh device 
used largely by finance companies to collect debts with­
out having to submit to a full hearing in court. Garnish­
ments are a great hardship to wage earners, who cannot 
afford to lose even 10% or 15% of their wages and still 
maintain their families, and who are threatened in many 
instances with being fired if they do not settle with their 
alleged creditors. As one member of the House Commit­
tee on Banking and Currency has stated, “ [ Garnishment 
is an expensive, painful procedure which can cost a man’s 
job. This has come to the attention of this Committee as 
many other Members of Congress. The reports on the 
riots in Watts, Chicago and other cities, indicate that it 
costs people their lives.” Congressman Frank Annunzio, 
in House Subcommittee on Consumer Affairs Hearings on 
Consumer Credit Protection Act, p. 104 (1967). And pre­
judgment garnishment, by which perfectly innocent em­

6 “ In States such as Pennsylvania and Texas, which prohibit the 
garnishment of wages, the number of nonbusiness bankruptcies 
per 100,000 of population are nine and five, respectively, while 
in those States having relatively harsh garnishment laws, the in­
cidents of personal bankruptcies range between 200 to 300 per 
100,000 population.” Report No. 1040, House Committee on Bank­
ing and Currency, 90th Cong., 1st Sess., p. 21 (1967).



13

ployees can be subjected to all the pains and penalties of 
wage attachments before they are given a chance to say 
a single word in their own defense, is the harshest type 
of garnishment. As a Wisconsin Congressman has stated, 
“ The idea of wage garnishment in advance of judgment, of 
trustee process, of wage attachment, or whatever it is 
called is a most inhuman doctrine. It compels the wage 
earner, trying to keep his family together, to be driven 
below the poverty level.” Remarks of Congressman Henry 
Reuss, Cong. Rec., p. H688 (1968).

Petitioner asks that this Court grant the writ prayed 
for, because pre-judgment garnishment of petitioner’s 
wages is not only an “ inhuman doctrine” ; it is an un­
constitutional deprivation of due process of law secured 
by the Fourteenth Amendment.

n.
The Wisconsin Procedure for Obtaining Pre-Judg­

ment Wage Garnishments Deprives Employees of Due 
Process of Law.

The petitioner raises issues concerning only one feature 
of the Wisconsin garnishment procedure: Without notice 
or hearing it permits wages to be garnisheed before a 
judgment in the main action and without any showing by 
the plaintiff that he is probably entitled to the money or 
that unless the wages are attached, he will be unable to 
obtain jurisdiction over the defendant or execution in 
satisfaction of a potential judgment, and without any 
other purported justification. This case does not involve 
a claim that the common procedure of wage garnishment 
after judgment is unconstitutional, for with regard to 
that situation, there has been at least a finding that the 
defendant is indebted to the plaintiff. Petitioner does



14

maintain, however, that pre-judgment garnishments in 
Wisconsin are unconstitutional because wage-earners are 
given no prior hearing to contest the probable existence 
of the debt, the need of the plaintiff for security, or the 
validity under state law of the proposed garnishment.7

We start with the proposition that no one may be de­
prived of property by state action unless first given notice 
and opportunity to be heard. For example, this Court has 
struck down a Florida procedure whereby the judgment 
creditor of a corporation could issue an execution against 
the property of the owner of unpaid stock, without giv­
ing that owner notice or a prior hearing. The owner was 
held to be “ entitled, upon the most fundamental principles, 
to a day in court and a hearing upon such questions as 
whether the judgment is void or voidable for want of 
jurisdiction or fraud, whether he is a stockholder and 
indebted, and other defenses personal to himself.” Coe v. 
Armour Fertilizer Works, 237 U.S. 413, 423 (1915). Absent 
a prior hearing, the attachment was “ repugnant to the 
‘due process of law’ provision of the 14th Amendment, 
which requires at least a hearing, or an opportunity to 
be heard, in order to warrant the taking of one’s property 
to satisfy his alleged debt or obligation . . . ” Ibid.

7 Petitioner submits that a post-garnishment hearing is adequate 
protection for alleged debtors in those few cases where the plaintiff 
swears that notice of a hearing before the attachment would cause 
the defendant to flee the jurisdiction or remove his assets. This 
will hardly ever occur, since the defendant’s job and continuing 
source of income will always be in the jurisdiction in question in 
these cases. In any event, the hearing must take place with rea­
sonable promptness, and not be deferred until the trial of the main 
action, as in Wisconsin. I f  opportunity for a prompt hearing after 
such a garnishment existed, the attachment would become “ a mode 
only of commencing . . . suits” and would be constitutionally per­
missible. Coffin Bros. v. Bennett, 277 U.S. 29, 31 (1928).



15

The requirement of notice8 and the opportunity to be 
heard before a deprivation of property is one of the essen­
tial features of the American legal process. As Mr. Justice 
Frankfurter said in Joint Anti-Fascist Refugee Committee 
v. McGrath, 341 U.S. 123, 164 (1951), notice and hearing 
are “prerequisite to due process in civil proceedings.” As 
recently as Schroeder v. New York, 371 U.S. 208, 212 
(1962), this Court has held the right to be heard in civil 
litigation to be “ one of the most fundamental requisites 
of due process,”  and has even deemed it to be “ the funda­
mental requisite” of due process, Grannis v. Ordean, 234 
U.S. 385, 394 (1914). See also, Windsor v. McVeigh, 93 
U.S. 274, 277, 278 (1876); Hovey v. Elliot, 167 U.S. 409 
(1897).

There might be some circumstances, not present here, 
which might justify an attachment of a defendant’s prop­
erty before judgment and before any hearing. If there is 
some evidence that even notice of the hearing may itself 
have adverse consequences for the plaintiff, it is reason­
able to permit the attachment to be followed by, rather 
than preceded by, a hearing for the defendant. If, for 
example, the plaintiff swears that he has a basis for be­
lieving that the defendant was about to flee the jurisdic­
tion of the state, or was removing his assets from the 
state, it would be reasonable to permit a summary attach­
ment. See Ewing v. Mytinger <£ Casselberry, Inc., 339 U.S. 
594, 599 (1950). Such an attachment could particularly be 
justified if the alleged creditor had to post a bond to pro­
tect the debtor from loss caused by an improper garnish­

8 Under the Wisconsin procedure, not even prior notice of the 
garnishment proceeding is given to the wage earner; he need not 
be served with the garnishment summons until ten days after his 
employer is instructed to withhold the wages.



16

ment,9 or if the debtor could recover damages from a 
creditor who falsely and maliciously swore that he had 
reason to believe the debtor would flee the jurisdiction 
before judgment. But Wisconsin requires no bond, or even 
a sworn statement of need for summary process.10

Wisconsin provides workers threatened with garnish­
ment no prior hearing, requires no showing that a plain­
tiff needs emergency summary relief, and then provides 
wage earners no hearing at all until the trial (perhaps 
years after the garnishment) of the main action. The 
statute permits garnishment of the wages of domestic 
residents, such as petitioner, without any requirement 
that the plaintiff show or even allege that his ultimate 
recovery is in jeopardy. Yet few wage-earners are likely 
to flee the state upon being sued, and as a practical mat­
ter, it is impossible (or nearly so) to transfer from the 
jurisdiction the wages due from one’s employer.

We have, therefore, in the Wisconsin procedure, the 
practice of denying wage-earners the sums due them, with­
out either any adversary process or a special justification 
for summary procedure. The only way in which the Wis­
consin Supreme Court was able to hold such a procedure 
constitutional was to hold that a “ temporary deprivation”

9 Some of the seventeen states permitting pre-judgment garnish­
ment without a showing of need for summary relief do require a 
plaintiff’s bond to protect the wage earner. See e.g., Mont. Rev. 
Code §93-4304; Ark. Stat. Annot. §31-501 (double bond). Due 
process might require that summary relief be permitted only upon 
both a showing of need and a bond to protect the wage-earner. 
Wisconsin requires neither of a plaintiff.

10 Even where a plaintilf filed a sworn statement of need in order 
to obtain a summary garnishment without a prior hearing, there 
seems no justification for denying the defendant the right to a sub­
sequent but prompt hearing, and affording him the opportunity to 
dissolve the attachment by showing that the plaintiff was wrong 
— that the wage-earner was not in fact preparing to leave or remove 
his assets from the state.



17

of property is not a “deprivation” of property. In sup­
port of this proposition, it cited three Supreme Court 
decisions. But it may he seen that these decisions, none 
of which involved the attachment or garnishment of wages, 
are more properly viewed as cases dealing with special 
justifications of summary attachment, and that the due 
process clause of the Constitution is concerned with realities 
and not with word-play. The first case cited in the opinion 
of the Wisconsin Supreme Court is Ownbey v. Morgan, 
256 U.S. 94 (1921). But there the defendant resided in a 
foreign state. This Court justified the pre-judgment at­
tachment on this basis:

Hence it naturally came about that the American 
colonies and states, in adopting foreign attachment 
as a remedy for collecting debts due from nonresident 
or absconding debtors, in many instances made it a 
part of the procedure that if the defendant desired 
to enter an appearance and contest plaintiff’s demand, 
he must first give substantial security . . .  A  property 
owner who absents himself from the territorial juris­
diction of a state, leaving his property within it, must 
be deemed ex necessitante to consent that the state 
may subject such property to judicial process or to 
answer demands made against him in his absence, 
according to any practicable method that reasonably 
may be adopted. 256 U.S. at 105-111 (emphasis 
added).11 11

11 Other language in the Ownbey case indicates that this Court 
could not have intended that the principle it was adopting with 
regard to foreign debtors should apply to wage garnishments even 
of foreign wage earners. The Court used the term “ property”  not 
in its legal sense but in the ordinary sense of “ substantial wealth” : 

Ordinarily [the requirement that a debtor post bond to dis­
solve an attachment] is not difficult to comply with— a man 
who has property usually has friends and credit— and hence 
in its normal operation must be regarded as a permissible con­
dition. 256 U.S. at 111.



18

Coffin Brothers v. Bennett, 277 U.S. 29 (1928), is like­
wise no authority for the opinion of the Wisconsin Supreme 
Court. Justice Holmes, writing for the Court, approved 
a Georgia procedure for the attachment of the stock of 
liquidated banks. The stock could be attached prior to 
any hearing on the propriety of the attachment, even 
though the stockholders were domestic residents. But the 
opinion of the Georgia Supreme Court makes clear that 
attachment in such cases had a very special purpose: the 
attachment was necessary in order for plaintiffs to obtain 
jurisdiction over defendants.12 But plaintiff in the instant 
case did not need to garnishee defendant’s wages to obtain 
jurisdiction over her; he had in personam jurisdiction.13

The final authority relied upon by the majority below 
is McKay v. Mclnnes, 279 U.S. 820 (1928), a memorandum 
decision affirming Mclnnes v. McKay, 127 Me. 110, 141 A. 
699 (1928), holding Maine’s attachment before judgment 
statute not unconstitutional. The significance of McKay, 
as applied to the present case, however, must be open to 
some question. McKay was submitted on agreed facts to 
the Maine Supreme Court, and it nowhere appeared 
whether or not the defendant was a resident of Maine.

12 “ [The statute] does not provide for rendition of judgments 
in personam against the stockholders of banks which the superin­
tendent of banks has taken control of for the purpose of liquida­
tion, but provides only for summary issuance of executions against 
stockholders of such banks, as a mode only of commencing against 
them suits . . . ” 164 Ga. 350, 138 S.E. 670, 671 (1927).

13 Indeed, it is somewhat hard to discern what legitimate pur­
pose underlay plaintiff’s decision to garnishee petitioner’s wages. 
It did not need the garnishment for jurisdictional purposes, and 
petitioner was a domestic resident with roots in the community, 
including local employment. The amount of the garnishment was 
only $31.59, which in any event could not afford the plaintiff much 
security on his alleged $420.00 debt, particularly in view of the 
fact that Wisconsin law permits an alleged creditor to garnishee 
wages for one pay period only. Wis. Stats. §267.02(b) (2).



19

This Court’s citation of Oivnbey as authority for its affirm­
ance, and its failure to write an opinion, suggests that 
the Court may have thought that the facts underlying 
McKay were essentially the same as those underlying 
Ownbey. But in the present case, the Court is presented 
for the first time with the question of the validity of a 
pre-judgment attachment (in this case a wage garnish­
ment) on the basis of a record showing that the defen­
dant’s residence and place of employment were within the 
jurisdiction in which the plaintiff brought his suit, and 
there is therefore little or no justification for depriving 
the defendant of his property without any showing of 
probable cause or opportunity for a prior hearing.14

Furthermore, the applicability to this case of precedents 
dating even from the 1920’s must be subject to some ques­
tion. The precedents cited by the Wisconsin Supreme 
Court were suited to borrowers and lenders of substantial 
wealth. Debtors who had one bank account attached were 
likely to have others on which they could draw, or other 
sources of capital; an attachment did not deprive them of 
their only source of income. Only since the end of World 
War II has America become a consumer credit economy, 
in which, quite acceptably, wage-earners are regularly in

14 Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845 (1932), is a 
fourth case cited by the Wisconsin Supreme Court which involved 
a nonresident defendant sued by an infant plaintiff for having 
negligently disposed of a dynamite cap. The Supreme Court of 
West Virginia upheld the constitutionality of the attachment, with­
out prior hearing, of the defendant’s property. It may be pre­
sumed that it would be difficult to collect a judgment from a non­
resident. But that precedent was improperly extended by the 
Wisconsin Supreme Court to permit garnishment of petitioner’s 
wages; the plaintiff here did not allege that the security of any 
eventual judgment might be impaired, and since petitioner is a 
resident, with employment in Wisconsin, it cannot be presumed 
she would flee her job and the State i f  plaintiff were successful in 
its suit for $420.00.



2 0

debt. The outstanding installment debt has grown from 
2.5 billion dollars in 1945 to 75 billion dollars in 1967, and 
will exceed 100 billion dollars by 1970. Caplovitz, The 
Poor Pay More, xvi (Preface to 1967 edition). Petitioner 
submits that the application to garnishments in the 1960’s 
of rules of law formulated to govern attachments in the 
1920’s further warrants issuance of the writ prayed for, 
even were it not for the fact that the 40 year old cases 
are all distinguishable.

The remaining argument, then, supporting the validity 
of the garnishment is that employees whose wages are gar­
nisheed are not “ deprived” of their property because the 
“deprivation” is merely temporary; the -wages are held in 
escrow until the plaintiff’s main case is tried, and if the 
plaintiff is not successful, the garnishment is dissolved.15

But the due process clause of the Fourteenth Amend­
ment addresses itself not to “drily logical” analysis or

15 This reasoning was relied upon by two supreme courts besides 
that of Wisconsin, although Wisconsin’s is the only Supreme Court 
to apply it to wage garnishment. The Supreme Court of West 
Virginia has reasoned:

The most that such procedure does is to deprive defendant 
of the possession of his property temporarily by establishing 
a lien thereon. [Until final judgment] there has been no depri­
vation of property . . . Until such judgment is obtained, the 
defendant’s property in the hands of a garnishee is immune 
from the plaintiff’s grasp. Under no circumstances could it be 
converted into cash and applied to the plaintiff’s demand 
prior to final adjudication of the merits of the controversy 
between plaintiff and defendant. Byrd v. Rector, 112 W.Va. 
192, 163 S.E. 845 (1932).

And the Supreme Court of Maine, while conceding that “Depriva­
tion does not require actual physical taking of the property or 
thing itself. It takes place when the free use and enjoyment of 
the thing or the power to dispose of it at will are affected,”  upheld 
pre-judgment attachment by adding “yet conditional and tem­
porary it is.”  Mclnnes v. McKay, 127 Me. 110, 116, 141 A. 699, 
702 (1928).



2 1

“ scholastic interpretation,” see Noble State Bank v. Has­
kell, 219 U.S. 104, 110 (1911), but to idealities. And nothing 
is more real to a wage earner whose wages have been 
garnisheed than impairment of his ability to care for his 
family and meet the demands of his other creditors. It 
matters little that the plaintiff has no use of the defen­
dant’s wages; the important fact is that the defendant has 
no use of them. And, unlike attachment of stock or other 
assets of a wealthy man, loss of wages to a wage earner 
is likely to result in a financial squeeze seriously affect­
ing his power to feed, clothe and shelter his dependents.1' 
Nor is the “ temporary” nature of the deprivation a satis­
factory response; given the time required for discovery 
and the crowded condition of court dockets, it may he 
years before the main action comes to trial. During this 
period, the wage earner loses the difference—measurable 
as interest—between the present and future value of the 
wages due him. More important, the garnishment, valid 
or not, keeps a defendant under pressure to settle the 
lawsuit on terms favorable to the alleged creditors, even 
if he has a perfect defense. It is no comfort to a wage 
earner that, like any attachment, a garnishment “does 
not destroy title or the right to sell. Until a sale of exe­
cution, the debtor has full power to sell or dispose of 
the property attached without disturbing the possession 
(in case of personalty) or rights acquired by the attach­
ment.” Mclnnes v. McKay, 127 Me. 110, 115, 141 A. 699, 
702 (1928). Even in jurisdictions which do not forbid 
wage assignments, there is no real market for wages *

16 “ For a poor man— and whoever heard of the wages of the 
affluent being attached?— to lose part of his salary often means 
his family will go without the essentials. No man sits by while his 
family goes hungry or without heat. He either files for consumer 
bankruptcy, and tries to begin again, or just quits his job and 
goes on relief. Where is the equity, the common sense in such a 
process?”  Remarks of Congressman Gonzales, Cong. Rec. p. H690 
(Feb. 1, 1968).



2 2

currently attached, which the alleged debtor may never 
become entitled to. The Wisconsin Supreme Court’s con­
ception of what constitutes a “ deprivation”  of property is 
archaic and unrealistic, ignoring the difference in value 
between a sum of money and the right to future posses­
sion of that sum. It prevents thousands of wage earners 
each year from receiving the fair play to which our legal 
system entitles them. Petitioner submits that this Court 
should grant the writ in order to apply the requirements 
of the Due Process Clause to the process of pre-judgment 
garnishment as it operates in Wisconsin.

CONCLUSION

Wherefore, petitioners pray that the petition for writ 
of certiorari be granted and the judgment below reversed.

Respectfully submitted,

J ack Greenberg 
James M. N abrit, III 
L eroy D. Clark 
Gabrielle A. K irk 
P hilip G. S chrag

10 Columbus Circle 
New York, New York 10019

T homas M. Jacobson

110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Attorneys for Petitioner

W illiam F . Y oung, J r . 
Of Counsel



A P P E N D I C E S



la

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;

I t is ordered, 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.

I t is further ordered, 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



2a

Affidavit of Thomas M. Jacobson

State of W isconsin,
County of M ilwaukee, ss. :

T homas M. Jacobson, 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. Jacobson 
T homas M. Jacobson



3a

(Formal Parts Omitted)

W herefore an Order to Show Cause returnable before 
the Honorable Tbaddeus 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 Tbaddeus J. Pruss Decem­
ber 23, 1966;

W herefore 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 herefore 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 Wisconsin’s garnish­
ment law before judgment, more particularly Sections

Order of County Court



4a

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. Pruss

T haddeus J. Pruss, County Judge

O r d e r  o f  C o u n ty  C o u r t



5a

(Formal Parts Omitted)

P lease take notice 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. Jacobson 
B arbee & Jacobson 
M artin R. S tein

Defendant’s Attorneys



6a

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,

It 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.

Order of Circuit Court

(Formal Parts Omitted)

/ s /  George D. Y oung

Judge of the Circuit Court

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

T homas M. Jacobson, Attorney for Def.



7a

Please 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. Jacobson 
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 op Circuit Court, Milwaukee
County, Milwaukee, Wisconsin

Notice of Appeal to Supreme Court

(Formal Parts Omitted)



8a

Prefatory

This is an appeal from Branch 6 of the County Court of 
Milwaukee County. The plaintiff above named commenced 
a garnishment action against the defendant and named the 
Miller Harris Instrument Co. garnishee. Thereafter, the 
defendant moved the Court below by way of an order to 
show cause requesting the dismissal of the action upon the 
ground that the proceeding violated the defendant’s rights 
under Article I, Section 9, of the Wisconsin Constitution 
and the Fourteenth Amendment to the United States Con­
stitution.

The defendant appears now to have abandoned her con­
tention that there has been a violation of Article I, Section 
9, of the Wisconsin Constitution and now contends that the 
proceeding has violated her rights under Article VII, Sec­
tion 2, of the Wisconsin Constitution.

M emorandum Decision

I

A rticle VII, Section 2, of the 
W isconsin Constitution

Section 2 of Article VII provides in part that “ The judi­
cial power of this state, both as to matters of law and 
equity, shall be vested in a supreme court, circuit courts, 
courts of probate, . . .”

The basis for this argument is that Chapter 267 contains 
a presumption made by the legislature that in all disputes 
between a creditor and his alleged debtor the creditor will 
prevail and the debtor must automatically prepare for sat­

Memorandum Decision of Circuit Court

(Formal Parts Omitted)



9a

isfaction of the creditor’s claim through immediate seizure 
of his property. It is argued that the plaintiff need only 
file the summons and complaint with the clerk who is then 
automatically required to issue what purports to be “an 
order of the County Court,” although it commands not 
merely an appearance but disposes of the property, and 
that no judge is involved in any way in this process up 
to this point. This argument concludes that all authority 
to act in a preliminary dispute involving particular liti­
gants has been withdrawn from the Court and is in effect 
decided by the legislature.

The foregoing argument does violence to the provisions 
of Chapter 267, Wis. Stats. It is true that the legislature 
has afforded a remedy not known to the common law for 
the protection of creditors. The remedy provided simply 
requires that the garnishee complaint must allege the exist­
ence of one of the grounds for garnishment, the amount of 
the plaintiff’s claim, above all offsets, known to the plain­
tiff, and that the plaintiff believes the garnishee is indebted 
to or has property in his possession or under his control 
belonging to the defendant and that such indebtedness or 
property is not exempt from execution (Sec. 267.05 (1)).

Chapter 267 further provides that the garnishee sum­
mons and complaint shall be served on the principal defen­
dant not later than 10 days after service on the garnishee 
as provided in Sec. 262.06 (Sec. 267.07). I f the answer of 
the garnishee shows a debt due the defendant, the garnishee 
may 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 provision that the plaintiff 
may request the garnishee in writing to pay such sum to 
the clerk, and the garnishee must, within 5 days after re­
ceipt of such request, pay the sum to the clerk who then

M e m o r a n d u m  D e c is io n  o f  C ir c u it  C o u r t



10a

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 dismissed in those cases in 
which judgment goes for the defendant (Sec. 267.16).

Wisconsin has held that garnishment before execution 
is a provisional remedy. Mahrle v. Engle, 261 Wis. 485. 
The Court is unable to find Wisconsin authority that di­
rectly rebuts the defendant’s attack on Chapter 267 of the 
statutes, but it has long been held that a state may by 
appropriate legislation authorize the attachment or gar­
nishment of property within its borders, subject to the lim­
itations of the federal and state constitutions. An attach­
ment or garnishment is not a deprivation of property 
without due process of law within the meaning of constitu­
tional provisions, inasmuch as there must be an adjudica­
tion of the rights of the parties before the property can 
be subjected to the plaintiff’s claim. Sec. 267.16 (1) does 
that very thing.

So far as the payment into court is concerned, no judicial 
process seems to be involved. The payment amounts to 
nothing more than a ministerial act to relieve the garnishee 
defendant of litigation and the funds come into the posses­
sion of the court in custodia legis, and until adjudication 
in the main action has occurred nothing more than a tem­
porary deprivation has occurred. That deprivation is of 
statutory creation in favor of the creditor which was in 
existence at the time the debt was created. In this con­
nection the language of Byrd v. Rector, 112 W.Va. 192, 
81 A.L.R. 1213, 1216, is particularly appropriate:

“We think the answer to these propositions is that 
a defendant is not deprived of his property by reason

M e m o r a n d u m  D e c is io n  o f  C ir c u it  C o u r t



11a

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 plain­
tiff’s subsequent ability to obtain a judgment in per­
sonam 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 process. In the meantime there has been no 
deprivation of property. The attachment, quasi rem 
in nature, has operated only to detain the property 
temporarily, to await final judgment on the merits of 
plaintiff’s claim. No constitutional right is impaired. 
Mclnnes v. McKay, 127 Me. 110, 141 A. 699. Until such 
judgment is obtained, the defendant’s property in the 
hands of a garnishee is immune from the plaintiff’s 
grasp.”

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

M e m o r a n d u m  D e c is io n  o f  C ir c u it  C o u r t

II

D eprivation of P roperty Prior to N otice

Defendant argues that her property can be taken before 
she receives notice of the garnishment proceeding. This, 
of course, is based on the provisions set forth in Sec. 
267.07 (1) which provide for service of a copy of the gar­



12a

nishee summons and complaint or a notice of such service 
be served not later than 10 days after service on the gar­
nishee. It is argued that the garnishee defendant cannot 
only withhold defendant’s wages but can file an answer 
asserting that he owes wages to the defendant and simul­
taneously pay a substantial portion of those wages to the 
clerk before any notice of the proceeding is given to the 
defendant. The argument concludes by stating that the de­
fendant is given inadequate notice because such notice as 
he gets comes after the purpose of the garnishment is a 
fully accomplished fact. This is an erroneous view of the 
process.

The timeliness of the notice is truly the basis of the de­
fendant’s lament. The important fact, however, is that the 
defendant does have notice even though it may be given 
after his property is in custodia legis. Defendant’s argu­
ment rejects the fact that nothing has happened to the 
defendant’s title except it is temporarily in suspension 
pending a final adjudication on the debt owed the plaintiff. 
The argument would deprive the garnishee defendant of 
a means whereby involvement in litigation might be termi­
nated in order that a defendant who contracted a debt with 
the provisional remedy in existence may have the use of 
his property.

Whether a debtor should be relieved of garnishment 
while an action for debt is pending is one involving legis­
lative or public policy. When the legislative purpose has 
been declared in unmistakable language, it is not within 
the province of the Court to interpose contrary views of 
what the public need demands. Want v. Pierce, 191 Wis. 
202. And the courts have nothing to do with the policy of 
laws, their only duty is to interpret the laws as enacted

M e m o r a n d u m  D e c is io n  o f  C ir c u it  C o u r t



13a

by the legislature. Waldum v. Lake Superior T. & T. R. 
Co., 169 Wis. 137.

M e m o r a n d u m  D e c is io n  o f  C irc u it  C o u r t

m
No H earing B efore D eprivation of P roperty

The thrust of the defendant’s argument on this point is 
that she is not afforded the right to challenge the with­
holding of her wages prior to judgment in the main action 
and that she loses her property solely upon the service of 
summons and verified complaint in the garnishment action. 
This argument amounts to a paraphrasing of the second 
argument. Since the provisional remedy is constitutionally 
allowable a legitimate basis for garnishment exists. The 
argument that defendant is afforded no challenge to the 
withholding of her wages is ad hominem. If the main ac­
tion falls, so then does the garnishment and no property 
belonging to the defendant is lost.

The debt was contracted with the provisional remedy in 
existence and became part of the contract. To deprive the 
plaintiff of that remedy would be an impairment of contract 
and constitutionally bad.

Defendant further argues that the main action involves 
a promissory note and since plaintiff’s attorney is not per­
sonally 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 clear. 
Certainly the defendant has adequate statutory remedies, 
both investigative and procedural, which furnish an ade­
quate basis for the protection of her rights.



14a

IV

V iolation of D ue Process Because L ack of N otice I s N ot 
Conditioned O n Need F or S ummary P rocess

Defendant argues that absent a claim that a defendant 
is about to leave the employ of the garnishee, or is about 
to flee the state entirely, the employee’s wages are a con­
tinuing asset against which the plaintiff can proceed even 
after judgment; that such an exercise of jurisdiction is 
normally authorized only where jurisdiction may not he 
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 legislative incen­
tive for the extension of credit. A  means whereby a seller 
might protect himself against persons not well known to 
him. Whatever the purpose, the legislature provided the 
remedy, and the defendant contracted her debt with the 
right of garnishment on the plaintiff’s side. Defendant’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 legislative determination.

V

U nconstitutional I nterference W ith  A ppellant’s E ight 
To Gainful E mployment— V iolation of the F our­
teenth A mendment to the U nited S tates Constitu­
tion

Defendant cites Slaughter-House Cases, 16 Wall. 36 
(1873), as authority for the proposition that the right to 
pursue a gainful employment unimpeded by arbitrary state 
interference is a liberty preserved under the due process 
clause of the Fourteenth Amendment to the United States

M e m o r a n d u m  D e c is io n  o f  C ir c u it  C o u r t



15a

Constitution. Defendant goes on to argue that Chapter 
267, Wis. Stats., deprives defendant of income earned with­
out any demonstration that there is a need for such depri­
vation. Further, that persons of low income cannot post 
the bond in the amount of one and one-half times the sum 
in dispute and that, therefore, this remedy is illusory; that 
the deprivation of income is the most direct interference 
with the employment relationship, and that garnishment 
may cause an employee to be discharged by an employer.

Again, whether a creditor should be deprived of the pro­
visional remedy in the case of a poor person is a matter 
for legislative determination. As matters now stand, the 
remedy does not exist until credit has been extended. If 
the remedy is drastic, it behooves the defendant to refrain 
from contracting debts beyond her ability to pay. Certainly 
this Court is without authority in law to override the leg­
islative policy declared in Chapter 267, Wis. Stats. There 
is nothing arbitrary about establishing a provisional rem­
edy in connection with the process of collecting a debt. 
Whether a need for that remedy exists is for the legislature 
to determine.

M e m o r a n d u m  D e c is io n  o f  C irc u it  C o u r t

VI

Denial of E qual Protection of L aw

Defendant argues that Chapter 267 deprives the defend­
ant of equal protection of law' in violation of the Fourteenth 
Amendment to the United States Constitution because it 
permits illegal discrimination between persons in similar 
circumstances. This argument is based upon the proposi­
tion that Sec. 267.22, Wis. Stats., permits garnishment of 
salaries and wages of public officers and employees after 
judgment only.



16a

Chapter 267 does treat public employees different than 
members of the public at large as stated by the defendant. 
It has been held that this is a proper classification. 4 O.A.G. 
783. The Court agrees with that opinion. The continuity 
of the public business may very well be the reason why 
garnishment may not lie against a public employee until 
after judgment. That reason may lend support to the de­
fendant’s previous argument concerning interference with 
her employment but it does not destroy the reason for the 
classification. The validity of differentiating between pub­
lic and private employees effectively destroys defendant’s 
argument in this respect.

Conclusion

The judgment of the County Court of Milwaukee County 
must be affirmed, and plaintiff’s counsel will accordingly 
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, Wisconsin, this 15th day of March, 
1967.

M e m o r a n d u m  D e c is io n  o f  C irc u it  C o u r t

By the Court:

/ s /  George D. Y oung 
Circuit Judge



17a

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 C o.,

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.)



18a

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

No. 64

August Term, 1967

S tatk of W isconsin— In S upreme Court

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

Respondent,

Christine S niadach, alias,
Appellant,

M iller H arris I nstrument C o.,

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



19a

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, 1966, 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

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in



20a

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.

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

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.”



21a

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:

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

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. W. 
(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.



22a

(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. McKay5 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 6

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

6 (1928), 127 Me. 110, 141 Atl. 699.



23a

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.” 6 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,u

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, ch. 86, see. 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.

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in



24a

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,

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

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



25a

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 Oivnbey 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

O p in io n  o f  S u p r e m e  C o u r t  o f  W is c o n s in

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.



26a

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 rem 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

O p in ion  o f  S u p r e m e  C o u r t  o f  W is c o n s in

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



27a

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 o f Garnishment Statutes to A fford  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. 11

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

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28a

In Orton v. Noonan11 tho court stated in regard to gar­
nishment before judgment:

“ . . . tho court, without tho aid of any express 
statutory provision, has 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.” 18 19

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

This court in Chernin 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 We, 
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 Wis. 572.
19 Id. at p. 579.
20 (1952), 261 Wis. 308, 52 N.W.2d 785.
21 Novick v. Becker (1958), 4 Wis. 2d 432, 90 N.W.2d 620.

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29a

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

Assumption of Judicial Powers 
Sec. 2(57.04, 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 ABE OBDEBED TO EETAIN SUCH PBOPEBTY [belong­
ing to the defendant] and make no payment, except

FOE SUBSISTENCE ALLOWANCE IF ANY, TO THE PBINCIPAL
DEFENDANT PENDING THE FUETHEB OBDEB OF THE COUBT.

u

“ (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

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30a

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:

“  *. . . i t  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.

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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.” 26 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

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26 (1899), 173 U.S. 84, 19 Sup. Ct. 346, 43 L.Ed. 623.
27 Id. at pp. 95-96.
28 Supra, footnote 11.



32a

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.

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By the Court.— Order affirmed.



33a

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 Bay 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



34a

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. Ya. 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

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for liis 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. 266 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 Ownhey 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 Ownhey 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

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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

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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

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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.



38a

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.

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39a

This court has defined that right to contest the plaintiff’s 
use of process in Chernin v. International Oil Co. (1952), 
261 Wis. 308, 52 N.W. 2d 785, 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. I f 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 Ownbey where 
the United States Supreme Court concluded that the de­
fendant’s property would not have been seized if he were

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40a

not a man of property and, hence, he should be able to 
take care of 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), 194 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 (1965), 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. Giordenello 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

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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

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42a

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.

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

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43a

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:

Motion for Rehearing Denied

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

Respondent,
— v .—

Chkistine S niadach, alias,
Appellant,

M iller H arris 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.



44a

APPENDIX B

Statutory Provisions Involved

This case involves the following statutes of the State 
of Wisconsin:

(a) Wis. Stat. §267.01 (1967 Pocket Part)

(1) Any creditor may proceed against any person 
who is indebted to or has any property in his posses­
sion or under his control belonging to such creditor’s 
debtor, as prescribed in this chapter. “ Plaintiff” as 
used in this chapter includes a judgment creditor and 
“defendant” , a judgment debtor.

(2) Except as otherwise provided in this chapter, 
the procedure in garnishment actions shall be the same 
as in ordinary civil actions.

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

(3) An individual may commence a garnishment ac­
tion in his own person and in his own behalf, or by 
an attorney licensed to practice in the courts of this 
state, but not otherwise. Garnishment actions on be­
half 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 re­
cover the price or value of spirituous, malt, ardent or 
intoxicating liquors sold at retail.

(b) Wis. Stat. §267.02 (1967 Pocket Part)

(1) A  plaintiff may commence a garnishment action 
at any time after:



45 a

(a) A  summons is issued: 1. In an action for dam­
ages founded upon contract, express or implied (or 
in a contract action where a writ of attachment could 
issue on demands not yet due under s. 266.03(3)). 
2. In an action upon a judgment. 3. In a tort action 
where a writ of attachment could issue under s. 
266.03(2).

(b) An execution upon an in personam judgment is 
issuable.

(2) I f wages or salary are the subject of a garnish­
ment action, and payment of wages or salary to the 
defendant is, has been, or should be, withheld there­
in, plaintiff may not commence any other garnish­
ment action affecting the wages or salary of the prin­
cipal defendant prior to judgment in the principal 
action.

(3) Except as provided in sub. (2), the plaintiff 
may, in like manner, subsequently proceed against 
other garnishees, or, if he has reason to believe they 
have subsequently become liable, against the same 
garnishee.

(c) Wis. Stat. §267.05 (1967 Pocket Part)

(1) The garnishee complaint in a garnishment ac­
tion 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

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46a

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

(d) Wis. Stat. §267.07 (1967 Pocket Part)

(1) Except as provided in s. 267.05(4), the garnishee 
summons and complaint shall be served on the gar­
nishee as required for the exercise of personal juris­
diction under ch. 262, and notice of such service in 
substantial conformity with sub. (4), or a copy of the 
garnishee summons and complaint, together with the 
summons in the principal action, shall be served on 
the principal defendant as required for the exercise 
of personal jurisdiction under ch. 262, not later than 
10 days after service on the garnishee as provided 
in s. 262.06.

(e) Wis. Stat. §267.13 (1967 Pocket Part)

(1) If the answer shows a debt due to the defen­
dant, the garnishee may pay the same or sufficient 
thereof to cover the claim of the plaintiff, as stated 
in the garnishee complaint, with interest and costs, 
to the clerk of the court. I f prior to so doing, the 
plaintiff in writing requests the garnishee to pay such 
sum to such clerk, the garnishee shall, within 5 days 
after receipt of such request, pay the sum to the 
clerk. The clerk shall give his receipt therefor to the 
garnishee. Such payment shall discharge the garnishee 
of all liability for the amount so paid.

(2) If the debt disclosed is not due, this section 
shall apply when it becomes due, with like effect.

(3) If the garnishee fails to pay such sum within 
5 days after receipt of such request, the plaintiff shall

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47a

be entitled to judgment against the garnishee for the 
amount disclosed, when due, either before or after 
judgment in the original action and may collect the 
same by execution; but in case no judgment has been 
rendered in the principal action the execution against 
the garnishee shall require the sheriff to pay the 
money collected into court to abide the event of the 
principal action. Moneys paid into court shall be paid 
to the plaintiff when final judgment is rendered in 
his favor, and to the extent of satisfying the same, 
upon order of the court, and any balance to the party 
entitled thereto.

(4) I f no such request is made and the garnishee 
does not elect to pay such sum to the clerk, the gar­
nishee shall hold the same until order of the court. 
No stipulation between the plaintiff and the defendant 
shall be honored by the garnishee, until signed and 
approved by the court.

(5) I f judgment is against the plaintiff such moneys 
shall be paid to the defendant.

(f) Wis. Stat. §267.16 (1967 Pocket Part)

(1) 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.

(2) The court may adjudge the recovery of any 
debt, the conveyance, transfer or delivery to the 
sheriff or any officer appointed by the judgment of 
any real estate or personal property disclosed or 
found to be liable to be applied to the plaintiff’s de­
mand; or by the judgment pass the title thereto; and

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48a

may therein or by its order direct the manner of 
making sale and of disposing of the proceeds thereof, 
or of any money or other thing paid or delivered to 
the clerk or officer. The judgment against a garnishee 
shall discharge him from all demands by the defen­
dant for all property paid, delivered or accounted for 
by the garnishee, by force of such judgment.

(g) Wis. Stat. §267.18 (1967 Pocket Part)

(1) From the time of the service of the summons 
and complaint upon the garnishee he shall stand liable 
to the plaintiff for the property then in his posses­
sion or under his control belonging to the defendant 
or in which he is interested to the extent of his right 
or interest therein and for all his debts due or to 
become due to the defendant, except such as are ex­
empt from execution, but not in excess of the amount 
of the plaintiff’s claims as disclosed by his garnishee 
complaint together with 25 per cent of the amount 
claimed in the garnishee complaint but not less than 
$25 nor more than $500 to secure costs.

(2) (a) 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 al­
lowance, 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 per cent 
of the wages or salary owing. Said subsistence al­
lowance shall be applied to the first wages or salary 
earned in the period subject to said garnishment 
action.

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49a

(b) If the court determines that the principal de­
fendant is entitled to an exemption in excess of the 
subsistence allowance paid over or to be paid over 
pursuant to this subsection, such subsistence allow­
ance shall be set off and applied against said exemp­
tion. I f the court determines that the principal de­
fendant is entitled to an exemption less than the sub­
sistence allowance paid over or to be paid over pur­
suant to this subsection, such subsistence allowance 
shall be the exemption to which the principal defen­
dant is entitled in such garnishment action.

(h) Wis. Stat. 267.20 (1967 Pocket Part)

Except upon the order of a judge no action shall 
be commenced by the defendant or his assignee against 
a garnishee upon any garnished claim or demand or 
to recover any property garnished, or execution be 
issued upon a judgment in favor of defendant against 
such garnishee, until the termination of the garnish­
ment; and if an action has been commenced or an 
execution issued it shall be stayed by the court or a 
judge thereof as to the garnishee upon his application.

S t a tu to r y  P r o v is io n s  In v o lv e d



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