Page:Federal Reporter, 1st Series, Volume 9.djvu/649

 634 FEDERAL REPORTER.

Pratt v. Albright, Defendant, and another, Garnishee.

(Circuit Court, E. D. Wisconsin. October Term, 1881.)

1. Removal of Causes — Garnishment Under the Statute of Wisconsin.

Proceedings in garnishment, instituted under the statute of Wisconsin, are auxiliary to the main action, when considered with reference to the right of removal to the federal court.

2. Case Stated.

In a court of the state of Wisconsin, garnishee proceedings were instituted concurrently with the commencement of an action. The garnishee answered denying all indebtedness or liability to the principal defendant. The main action proceeded to judgment; and thereafter, and while the garnishee proceedings were still pending, the plaintiff, who was a citizen of a different state from that either of the defendant or garnishee, had the cause removed to a federal court. On motion to remand the cause to the state court, held, that the removal, having been made after a judgment had been rendered in the main action, was too late, and the cause must be remanded.

Garnishee Proceedings. Motion to remand.

Goodwin & Benedict, for motion to remand.

Hastings & Greene, contra.

Dyer, D. J. A statute of the state of Wisconsin provides that either at the time of the issuing of a summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or at any time after the issuing in any case of an execution against property and before the time when it is returnable, proceedings of garnishment may be had by the plaintiff in the action against any person indebted to the defendant, and a course of procedure is prescribed by which the garnishee may be required to answer as to any such indebtedness, and may be made amenable to the orders of the court wherein the principal action is pending.

It is further provided that when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and the proceeding is to be deemed an action by the plaintiff against the defendant in the principal suit and the garnishee, as parties defendant. The statute also authorizes the defendant in the principal action to defend the proceeding against the garnishee, and the garnishee, at his option, to defend the principal action for the defendant if the latter does not defend. With these statutory provisions in force, the plaintiff herein commenced a suit in the state court against the defendant Albright to recover the amount due upon an accepted bill of exchange, and, concurrently with the commencement of that action, instituted