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.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); 1975 c. 198
; Stats. 1975 s. 812.19; 1979 c. 32
s. 92 (9)
; 1993 a. 80
See s. 895.36
, providing that no person shall be liable as garnishee of a public corporation.
Future profits of a corporation are a contingent liability as to a shareholder and are not subject to garnishment. Olen v. Phelps, 200 Wis. 2d 155
, 546 N.W.2d 507
(Ct. App. 1996), 93-3302
Action by defendant against garnishee stayed.
Except upon the order of a judge no action shall be commenced by the defendant or the defendant's assignee against a garnishee upon any garnisheed claim or demand or to recover any property garnisheed, or execution be issued upon a judgment in favor of defendant against such garnishee, until the termination of the garnishment action; 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 the garnishee's application.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.20; 1993 a. 213
Release of garnishment; bond. 812.21(1)
The defendant may file with the clerk of the court a bond, executed by at least 2 sureties, resident freeholders of the state, to the effect that they will on demand pay to the plaintiff the amount of the judgment that may be recovered against such defendant not exceeding a sum specified, which shall be 1 1/2 times the amount of the debt specified in the garnishee complaint or in such less sum as the court directs. If the plaintiff fails to take issue with the garnishee answer the bond shall be conditioned to pay to the plaintiff the amount of the debt admitted or of the value of the property held by the garnishee.
The sureties shall justify their responsibility by affidavit annexed, stating a sum which each is worth in property within this state, above all the surety's liabilities and exclusive of property exempt from execution, the aggregate of which sums shall be double the amount specified in the bond. The defendant shall serve on the plaintiff a copy of such bond with a notice of where the same was filed. Within 3 days after the receipt thereof the plaintiff may notify the defendant that the plaintiff excepts to the sufficiency of the sureties, otherwise the plaintiff waives all objections to them. When the plaintiff excepts, the sureties shall justify in like manner as bail on arrest, and ss. 818.17
shall be applicable thereto. Thereafter the garnishee shall be discharged and the garnishment proceedings shall be deemed discontinued, and any money or property paid or delivered to any officer shall be surrendered to the person entitled thereto, and the costs shall be taxable as disbursements of the plaintiff in the action if the plaintiff recovers.
Sup. Ct. Order, 67 Wis. 2d 585, 759, 779 (1975); Stats. 1975 s. 812.21; Sup. Ct. Order, 83 Wis. 2d xiii; 1993 a. 486
In case of a trial of an issue between the plaintiff and any garnishee, the prevailing party shall recover taxable costs.
History: Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.22.
Any creditor who violates s. 812.01 (3)
or 812.02 (2)
shall forfeit not more than $100 which forfeiture shall be paid to the county treasurer.
The court before which the garnishment action is pending shall have summary jurisdiction under this section.
Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975), 779; Stats. 1975 s. 812.24; 1977 c. 203
In this subchapter:
"Court" includes a circuit court commissioner assigned to preside at a proceeding under this subchapter.
"Creditor" means a person who has a claim against a debtor.
"Debtor" means the person whose earnings are subject to the garnishment and who is either the judgment debtor or the judgment debtor's spouse whose earnings are marital property.
"Dependent" means the debtor's spouse if living in the debtor's household and any other individual whom the debtor is legally required to support and to whom the debtor provides substantial support or maintenance.
"Disposable earnings" means that part of the earnings of the debtor remaining after deducting social security taxes and federal and state income taxes listed on the person's wage statement.
"Earnings" means compensation paid or payable by the garnishee for personal services, whether designated as wages, salary, commission, bonus or otherwise, and includes periodic payments under a pension or retirement program.
"Household income" means the disposable earnings of the debtor and dependents during any month in which the garnishment is in effect, plus unearned income received by the debtor and dependents in that month, less any of the debtor's earnings assigned by court order under ch. 767
"Need-based public assistance" means aid to families with dependent children, relief funded by a relief block grant under ch. 49
, relief provided by counties under s. 59.53 (21)
, medical assistance, supplemental security income, food stamps, or benefits received by veterans under s. 45.40 (1m)
or under 38 USC 501 to 562
[38 USC 1501
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
The procedures in this subchapter govern the garnishment of earnings, regardless of the amount of the judgment debt. Except as otherwise provided in this subchapter, the general rules of practice and procedure in chs. 750
shall apply to actions under this subchapter. Section 799.06 (2)
shall apply to actions under this subchapter.
Venue for earnings garnishment is prescribed by s. 801.50
; the garnishee shall be deemed a defendant for purposes of that statute.
An earnings garnishment action may not be commenced in a county other than the county where the judgment is entered unless a transcript of the judgment is entered in that county.
Each pleading or other document in an earnings garnishment proceeding shall designate each party as creditor, debtor or garnishee.
History: 1993 a. 80
; 1995 a. 224
Earnings garnishment generally.
Earnings garnishment is an action to collect an unsatisfied civil judgment for money damages plus statutory interest and costs, from earnings payable by the garnishee to the debtor.
History: 1993 a. 80
How Do Creditors, Debtors and Overburdened Small Claims Courts Get Relief? 1993 Wisconsin Act 80
. Fullin. Wis. Law. March 1994.
The creditor shall pay a $15 fee to the garnishee for each earnings garnishment or each stipulated extension of that earnings garnishment. This fee shall be included as a cost in the creditor's claim in the earnings garnishment.
History: 1993 a. 80
The exemptions provided in this section do not apply if the judgment debt meets one of the following conditions:
Unless the court grants relief under s. 812.38 (2)
or par. (b)
applies, 80% of the debtor's disposable earnings are exempt from garnishment under this subchapter.
The debtor's earnings are totally exempt from garnishment under this subchapter if:
The debtor's household income is below the poverty line.
The debtor receives need-based public assistance, has received such assistance within 6 months prior to service of the earnings garnishment forms upon the garnishee or has been determined eligible to receive need-based assistance although actual receipt of benefits has not commenced.