A garnishment action shall be commenced by the filing of a garnishee summons and annexed complaint, except no action shall be deemed commenced as to any defendant upon whom service of authenticated copies of the summons and the complaint has not been made within 60 days after filing.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.04; 1977 c. 80
; 1979 c. 32
s. 92 (16)
; 1979 c. 228
; 1981 c. 317
; 1983 a. 92
; 1985 a. 135
; 1987 a. 221
; 1993 a. 80
; 1997 a. 250
Judicial Council Committee Note, 1974: S. 812.04 (3) is amended to comport with the new rules. There are 2 modifications: the complaint need not be verified and the mode of commencement is changed to comport with s. 801.02. [Re Order effective Jan. 1, 1976]
Garnishee complaint before and after judgment; several garnishees. 812.05(1)
The garnishee complaint in a garnishment action before judgment must allege the existence of one of the grounds for garnishment mentioned in s. 812.02 (1) (a)
, the amount of the plaintiff's claim against the defendant and disbursements, not to exceed $40, above all offsets, known to the plaintiff, and that plaintiff believes that the named garnishee is indebted to or has property in his or her possession or under his or her control, other than earnings, as defined under s. 812.30 (7)
, belonging to the defendant (naming him or her) and that the indebtedness or property is, to the best of plaintiff's knowledge and belief, not exempt from execution.
The garnishee complaint in a garnishment action after judgment must allege the existence of the grounds for garnishment mentioned in s. 812.02 (1) (b)
, and the name and location of the court, case number, if any, date of entry and amount of the judgment on which the garnishment action is based, the amount of the plaintiff's claim against the defendant and disbursements, not to exceed $40, above all offsets known to the plaintiff, and that plaintiff believes that the named garnishee is indebted to or has property in his or her possession or under his or her control belonging to the defendant (naming him or her) and that the indebtedness or property is, to the best of plaintiff's knowledge and belief, not exempt from execution.
Any number of garnishees may be joined in the same garnishment action; but if a joint liability is claimed it shall be so stated in the complaint, otherwise the several garnishees shall be deemed severally proceeded against.
If a garnishee defendant is named by a partnership name, service of the garnishee summons and complaint may be made upon any partner. A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.05; 1977 c. 80
; 1983 a. 257
; 1993 a. 80
Garnishee fees, costs.
A garnishee shall be entitled to $3 as garnishee fee, and shall not be required to answer unless such fee is first paid. When a corporation is garnisheed such fee shall be paid to the person upon whom the garnishee summons and complaint is served. Such fee shall be taxed as costs in the action the same as witness fees are taxed.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.06; 1993 a. 213
Service on garnishee and defendant. 812.07(1)
Except as provided in s. 812.05 (4)
, the garnishee summons and complaint shall be served on the garnishee as required for the exercise of personal jurisdiction under ch. 801
, 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. 801
, not later than 10 days after service on the garnishee as provided in s. 801.11
State of Wisconsin
You are notified that an action has been commenced against you by .... on a claim of $.... and that your property in the hands of .... has been garnisheed to satisfy that claim.
Unless you demand a complaint as provided in the attached summons, or answer the garnishment complaint, a copy of which can be obtained from the undersigned, judgment will be taken against you and your property applied to pay the debt as provided by law.
Dated this .... day of .... .... (year)
Plaintiff by: ....
Unless the notice, or a copy of the garnishee summons and complaint, is served, as provided in this section, the garnishee action shall be dismissed.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.07; 1993 a. 80
; 1997 a. 250
No judgment in the principal action shall be entered against the defendant for an amount in excess of the liability of the garnishee to the principal defendant, unless the defendant makes a general appearance or is personally served and defaults or unless the defendant appears without objecting to the jurisdiction of the court over his or her person. An in rem judgment shall not bar another action for any unpaid balance of the claim.
No money shall be paid by the garnishee to the plaintiff to satisfy an in rem judgment within one year from entry of such judgment unless the plaintiff executes a bond or undertaking to the garnishee, to be filed in the garnishee action, for double the amount paid, or for double the value of the property delivered conditioned that if the principal defendant within one year from entry of judgment secures relief under s. 806.07
, and, in due course prevails on the merits, the plaintiff will pay the amount or any part thereof found due to the principal defendant or to the garnishee defendant, as the court orders.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.08; 1993 a. 486
The garnishee shall, within 20 days from the service of a garnishee summons and complaint, exclusive of the day of service, serve upon the attorney for the plaintiff, and file with the clerk of court, an answer in which the garnishee shall state:
Whether the garnishee was, at the time of the service of the garnishee summons, indebted or under any liability to the defendant, naming the defendant, in any manner or upon any account, specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced, when payable, whether an absolute or contingent liability and the facts necessary to a complete understanding of such indebtedness or liability. When the garnishee is in doubt respecting any liability or indebtedness to the defendant, the garnishee may set forth the facts concerning the possible liability or indebtedness.
Whether the garnishee held, at the time of the service of the garnishee summons, title to, possession of or any other interest in any land or personal property or any instruments or papers relating to any such land or personal property belonging to the defendant or in which the defendant is interested. If the garnishee admits holding any interest in property described in this subsection or is in doubt respecting whether the garnishee holds an interest in property described in this subsection, the garnishee shall set forth a description of the property and the facts concerning the property, and the title, interest or claim of the defendant in or to the property.
If the garnishee claims any setoff or defense to any debt or liability or any lien or claim to property described in sub. (2)
, the garnishee shall allege the facts.
The garnishee may state any claim of exemption from execution on the part of the defendant or other objection, known to the garnishee, against the right of the plaintiff to apply upon the plaintiff's demand the debt or property disclosed.
If the garnishee discloses any debt or the possession of any property to which the defendant and other persons make claim, the garnishee may allege the names and residences of such other claimants and, so far as known, the nature of their claims.
In addition to the requirements of sub. (1)
, if the garnishee is indebted to or under any liability to the defendant for payment for the sale of any crops, livestock, dairy products or another product grown or produced by a person or by his or her minor children, the garnishee answer shall state the amount to be paid under s. 812.18 (2m) (b)
to the defendant and the balance held by the garnishee.
Service upon the attorney for the plaintiff may be effected by mailing a copy of the garnishee answer to the attorney for the plaintiff at the attorney's post-office address as shown on the summons.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.11; 1983 a. 92
; 1993 a. 80
A garnishee's answer indicating that it had no assets of the debtor was proper when it held partnership property but the garnishee complaint only named the partners as individuals and in no way identified the partnership although the underlying judgment was against the partnership. Ag Services of America, Inc. v. Krejchik, 2002 WI App 6
, 250 Wis. 2d 340
, 640 N.W.2d 125
Payments by garnishee; releases. 812.13(1)
If the answer shows a debt due to the defendant, the garnishee may pay the debt or an amount sufficient to cover the plaintiff's claim, as stated in the garnishee complaint and disbursements, not to exceed $40, to the clerk of the court. If prior to so doing, the plaintiff in writing requests the garnishee to pay the sum to the clerk, the garnishee shall, within 5 days after receipt of the request, pay the sum to the clerk. The clerk shall give a receipt for payment to the garnishee. The payment shall discharge the garnishee of all liability for the amount paid.
If the debt disclosed is not due, this section shall apply when it becomes due, with like effect.
If the garnishee fails to pay such sum within 5 days after receipt of such request, the plaintiff shall 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 the plaintiff's favor, and to the extent of satisfying the same, upon order of the court, and any balance to the party entitled thereto.
If no such request is made and the garnishee does not elect to pay such sum to the clerk, the garnishee shall hold the same until order of the court. Any stipulation between the plaintiff and defendant shall be filed with the court.
If judgment is against the plaintiff such moneys shall be paid to the defendant.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.13; 1977 c. 80
; 1983 a. 257
; 1993 a. 486
Answer conclusive if no reply by plaintiff; procedure following reply. 812.14(1)
The answer of the garnishee shall be taken as true unless the plaintiff, within 20 days after the receipt of the answer of the garnishee, serves a reply upon the garnishee.
Upon service of the reply, issue shall be joined between the plaintiff and garnishee, and the parties shall thereupon proceed as in ordinary civil actions.
Trial of a garnishment issue shall be to the court.
History: Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.14.
Defendant or garnishee may defend both actions. 812.15(1)(1)
The defendant may, within 20 days from the service of the garnishee summons and complaint on the defendant, answer the garnishee complaint and defend the garnishment action upon any ground upon which a garnishee might defend, and may participate in the trial of any issue between the plaintiff and garnishee. The garnishee may, at the garnishee's option, defend the principal action for the defendant, if the latter does not defend.
When any garnishee defends the principal action, the garnishee shall thereby become a party defendant in said action and shall be so entered of record by the clerk, but shall be liable only for the costs in said action.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.15; 1993 a. 486
Principal action tried first; judgment. 812.16(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.
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 demand; or by the judgment pass the title thereto; and 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 the garnishee from all demands by the defendant for all property paid, delivered or accounted for by the garnishee, by force of such judgment.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.16; 1993 a. 486
See s. 811.14
for sale of perishable property.
When the answer of the garnishee discloses that any 3rd person claims the debt or property in the garnishee's hands and the name and residence of such claimant the court may order that such claimant be impleaded as a defendant in the garnishment action and that notice thereof, setting forth the facts, with a copy of such order and answer be served upon the 3rd-person claimant, and that after such service is made the garnishee may pay or deliver to the officer or the clerk such debt or property and have a receipt therefor, which shall be a complete discharge from all liability for the amount so paid or property so delivered. Such notice shall be served as required for service of a summons. Upon such service being made such claimant shall be deemed a defendant in the garnishee action, and within 20 days shall answer setting forth the claimant's claim or any defense that the garnishee might have made.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.17; 1993 a. 486
; 2007 a. 97
Liability of garnishee. 812.18(1)
From the time of service upon the garnishee, the garnishee shall be liable to the creditor for the property then in the garnishee's possession or under his or her control belonging to the debtor or in which the debtor is interested to the extent of his or her right or interest therein and for all the garnishee's debts due or to become due to the debtor, except such as are exempt from execution, or are required by a court to be paid by the debtor as restitution under s. 973.20
, but not in excess of the amount of the creditor's claim.
In this section, "dependent" means any individual including a spouse who requires and is actually receiving substantial support and maintenance from the defendant.
If the property which is the subject of a garnishment action is the proceeds from the sale of crops, livestock, dairy products or another product grown or produced by a person or by his or her minor children, the garnishee shall pay over to the defendant on the date when the payment would normally be made any exempt amount under s. 815.18 (3) (h)
An order of any court of bankruptcy under chapter XIII of the bankruptcy act.
If the garnishee holds subject to the garnishment or pays pursuant to s. 812.13
, moneys owed the principal defendant equal to the amount of the plaintiff's claim as set forth in the garnishee complaint and disbursements, then any excess moneys owed the defendant, and any garnisheed property in the garnishee's possession or control, shall no longer be subject to the garnishment. If the moneys owed by the garnishee to the defendant and so held are less than the amount claimed and disbursements, all property subject to the garnishment shall be held pending the further order of the court, subject to any rights of disposition that the garnishee may have, and all proceeds therefrom to which defendant would be entitled shall likewise be retained. The defendant may, on notice, petition the court for an order to release, from the garnishment, all property or its proceeds not reasonably required to assure payment of the plaintiff's claim and disbursements.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.18; 1977 c. 29
; 1979 c. 221
; 1983 a. 92
; 1987 a. 398
; 1989 a. 278
; 1993 a. 80
See s. 16.53 (1) (d) 4.
for provision as to authority of the secretary of administration in garnishment matters.
See s. 425.106
for exemptions arising out of consumer credit transactions.
Nonliability as garnishee; judgment when rendered. 812.19(1)(1)
No person shall be liable as garnishee:
By reason of his having drawn, accepted, made, endorsed or guaranteed any negotiable instrument; or
By reason of anything received or collected by that person by execution or other process; or
By reason of any money in his hands as a public officer; or
By reason of anything owing by that person upon a contingency.
Property in a safe deposit box in any bank or safe deposit company is not property in the possession or control of such bank or safe deposit company within the meaning of this subchapter.
A debt owing by the owner of property subject to a construction lien, pursuant to s. 779.01
, shall not be deemed absolutely due until the claims of subcontractors and employees under s. 779.01
have matured or expired.
Except as provided in this section, judgment may be given for anything owing, although it has not become due in which case the garnishee shall not be required to pay or deliver it before the time appointed by the contract.