Chapter 812

812.44   Forms.

subch. I of ch. 812 SUBCHAPTER I

GARNISHMENT OF PROPERTY
OTHER THAN EARNINGS

Subch. I of ch. 812 Note NOTE: 1993 Wis. Act 80, which affected subch. I and created subch. II, contains extensive judicial council notes.

812.01 812.01 Commencement of garnishment.

812.01(1) (1) Any creditor may proceed against any person who is indebted to or has any property in his or her possession or under his or her control belonging to such creditor’s debtor or which is subject to satisfaction of an obligation described under s. 766.55 (2), as prescribed in this subchapter. “Plaintiff” as used in this subchapter includes a judgment creditor and “defendant”, a judgment debtor or the spouse or former spouse of a judgment debtor if the judgment is rendered in connection with an obligation described under s. 766.55 (2).

812.01(2) (2) The procedures in this subchapter govern all garnishments except the garnishment of earnings. Except as otherwise provided in this subchapter, the general rules of practice and procedure in chs. 750 to 758 and 801 to 847 apply to actions under this subchapter.

812.01(2a) (2a) A garnishment action is a separate action.

812.01(3) (3) An individual may commence a garnishment action in the individual’s own person and in the individual’s own behalf, or by an attorney licensed to practice in the courts of this state, but not otherwise. Garnishment actions on behalf of any other party shall be commenced only by attorneys licensed to practice in the courts of this state.

812.01(4) (4) No garnishment action shall be brought to recover the price or value of alcohol beverages sold at retail.

812.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.01; 1981 c. 79 s. 17; 1985 a. 37; 1993 a. 80, 486.

812.01 Annotation The doctrine of marshaling assets is discussed. Moser Paper Co. v. North Shore Pub. Co. 83 Wis. 2d 852, 266 N.W.2d 411 (1978).

812.01 Annotation To be subject to garnishment, a debt must be owing absolutely at the time of the service of process, even if payable later. When the question of indebtedness depends entirely upon future contingencies, there is no liability. Hometown Bank v. Acuity Insurance, 2008 WI App 48, 308 Wis. 2d 503, 748 N.W.2d 203, 07-1048.

812.01 Annotation Notwithstanding sub. (2), procedures in ch. 799 are used in small claims garnishment actions. Wisconsin Natural Gas Co. v. Kletsch, 95 Wis. 2d 691, 291 N.W.2d 640 (Ct. App. 1980).

812.01 Annotation An otherwise valid judgment can be enforced against a legal entity when the judgment is entered against the name under which the legal entity does business. If the name under which a person or corporation does business is “simply another way to refer to” a single legal entity and constitutes no entity distinct from the person or corporation who does business, then a judgment against the “doing business as” name is enforceable against the legal entity from which it is indistinct. Paul Davis Restoration of S.E. Wisconsin, Inc. v. Paul Davis Restoration of Northeast Wisconsin, 2013 WI 49, 347 Wis. 2d 614, 831 N.W.2d 413, 11-1121.

812.01 Annotation A Wisconsin court may issue an in personam order affecting out-of-state property, even though the court does not have in rem jurisdiction over the property. A debt may generally be garnished wherever personal jurisdiction may be exercised over the garnishee. Midland Funding, LLC v. Mizinski, 2014 WI App 82, 355 Wis. 2d 475, 854 N.W.2d 371, 13-2422.

812.01 Annotation A plaintiff in a garnishment action has no right to receive any property from the garnishee until superior liens are satisfied. The mere fact that a creditor was the first party to file a garnishment action is not dispositive of priority. Prince Corporation v. Vandenberg, 2015 WI App 55, 364 Wis. 2d 457, 868 N.W.2d 599, 14-2097.

812.01 Annotation A garnishment proceeding is separate from an action establishing a debtor’s liability to a plaintiff creditor in the garnishment action. In a garnishment action, a money judgment may not be ordered against nongarnishees, including the debtor. Beck v. BidRX, LLC, 2018 WI App 61, 384 Wis. 2d 207, 918 N.W.2d 96, 17-2043.

812.01 Annotation The state is immune from suit in any garnishment action not involving a state employee or officer. 77 Atty. Gen. 17.

812.01 Annotation Garnishment of corporate bank accounts must comply with due process protections of Fuentes and Sniadach. North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U.S. 601 (1975).

812.02 812.02 Garnishment before and after judgment.

812.02(1) (1) A plaintiff may commence a garnishment action at any time after:

812.02(1)(a) (a) A summons and complaint are filed:

812.02(1)(a)1. 1. In an action for damages 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. 811.03 (3)).

812.02(1)(a)2. 2. In an action upon a judgment.

812.02(1)(a)3. 3. In a tort action where a writ of attachment could issue under s. 811.03 (2).

812.02(1)(b) (b) An execution upon an in personam judgment is issuable.

812.02(2) (2) 

812.02(2)(b) (b) If the plaintiff in the principal action is unable to obtain personal service on a defendant and has filed the summons and return of service from the sheriff with the clerk of court, the judge of the court in which the principal action is pending may grant an order permitting the plaintiff to make substituted service on the defendant’s employer if the plaintiff shows:

812.02(2)(b)1. 1. The defendant’s present place of employment; and

812.02(2)(b)2. 2. That a cause of action exists; and

812.02(2)(b)3. 3. That a reasonable effort has been made to obtain personal service on the defendant.

812.02(2)(c) (c) Before taking judgment in an action commenced under par. (b), the plaintiff shall present an affidavit from the defendant’s employer stating that the defendant received the summons of that action.

812.02(2e) (2e) A plaintiff may not commence any garnishment action affecting the property of a spouse who is not a defendant in the principal action unless the spouse is a defendant in the garnishment action.

812.02(2m) (2m) Any garnishment action shall be subject to the limitations of s. 806.25.

812.02(3) (3) The plaintiff may, in like manner, subsequently proceed against other garnishees and, if the plaintiff has reason to believe they have subsequently become liable, against the same garnishee more than once.

812.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.02; 1985 a. 37; 1993 a. 80, 486.

812.02 Note Judicial Council Committee Note, 1974: S. 812.02 (1) (a) (intro.) is amended to require the filing of summonses and complaints to make garnishment proceedings comport with other actions under s. 801.02. [Re Order effective Jan. 1, 1976]

812.02 Annotation An attorney prosecuting an action under sub. (1) (a), which has been found to be unconstitutional as applied to prejudgment garnishment of wages and other property, may be liable under an action under the Civil Rights Act, 42 USC 1983. United States General, Inc. v. Schroeder, 400 F. Supp. 713 (1975).

812.02 Annotation Prejudgment garnishment. 1975 WLR 860.

812.04 812.04 Garnishment actions; how commenced; summons.

812.04(1) (1) Upon payment to the clerk of court of the fee prescribed in s. 814.62 (1), the clerk shall issue a garnishee summons together with sufficient copies to the plaintiff or his or her attorney; the summons form may be in blank, but must carry the court seal.

812.04(2) (2) The garnishee summons shall be substantially in the following form:

STATE OF WISCONSIN

.... COURT

.... COUNTY

A. B., Plaintiff

vs.

C. D., Defendant

and

E. F., Garnishee

The State of Wisconsin, to the garnishee:

You are hereby summoned, as garnishee of the defendant, C. D., and required, within 20 days after the service of this summons and the annexed complaint upon you, exclusive of the day of service, to answer, whether you are indebted to or have in your possession or under your control any property belonging to the defendant.

IF YOU ARE INDEBTED TO THE DEFENDANT FOR PAYMENT FOR THE SALE OF AGRICULTURAL PRODUCTS, YOU ARE ORDERED TO PAY THE PRESCRIBED AMOUNT TO THE DEFENDANT. YOU ARE ORDERED TO RETAIN FROM THE BALANCE THE AMOUNT OF THE PLAINTIFF’S CLAIM AND DISBURSEMENTS, AS STATED IN THE ANNEXED COMPLAINT PENDING THE FURTHER ORDER OF THE COURT. ANY EXCESS INDEBTEDNESS SHALL NOT BE SUBJECT TO THE GARNISHMENT. IF YOU HAVE PROPERTY BELONGING TO THE DEFENDANT AND THE AMOUNT OF INDEBTEDNESS RETAINED IS LESS THAN THE AMOUNT CLAIMED AND DISBURSEMENTS, YOU ARE TO RETAIN THE PROPERTY PENDING THE FURTHER ORDER OF THE COURT, EXCEPT AS PROVIDED IN SECTION 812.18 (3) OF THE WISCONSIN STATUTES. THE AMOUNT RETAINED BY YOU FOR THE PLAINTIFF’S DISBURSEMENTS MAY NOT EXCEED $40.

You are further required to serve a copy of your answer to the garnishee complaint on the undersigned attorney and to file your original answer with the clerk of this court, within the 20-day period. In case of your failure to answer, judgment will be entered against you for the amount of plaintiff’s judgment against the defendant and costs, of which the defendant will also take notice.

If the property which is the subject of this 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, you must pay over to the principal defendant the appropriate amount under section 812.18 (2m) (b) of the Wisconsin Statutes.

Dated this .... day of ...., .... (year)

Clerk of .... Court

(Seal)

Attorney for Plaintiff:

....

P. O. Address

....

....

812.04(3) (3) 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.

812.04 History History: 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, 355; 1981 c. 317; 1983 a. 92, 257, 538; 1985 a. 135; 1987 a. 221; 1993 a. 80; 1997 a. 250.

812.04 Note 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]

812.05 812.05 Garnishee complaint before and after judgment; several garnishees.

812.05(1) (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.

812.05(2) (2) 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.

812.05(3) (3) 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.

812.05(4) (4) 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.

812.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 759, 778 (1975); Stats. 1975 s. 812.05; 1977 c. 80; 1983 a. 257; 1993 a. 80.

812.06 812.06 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.

812.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 759 (1975); Stats. 1975 s. 812.06; 1993 a. 213.

812.07 812.07 Service on garnishee and defendant.

812.07(1) (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.

812.07(4) (4) Form of notice.

State of Wisconsin

.... Court

.... County

TO: ........

........

........

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: ....