#### Wm. Marnitz Company, Appellant, vs. Richards, Respondent.

*March 2*

March *23, 1915.*

*Judgment:*Res judicata: *Garnishment: Atuse of process: Dismissal of proceeding: Discretion.*

1. Where one who had agreed to buy certain corporate stock and had paid a part of the purchase price afterwards obtained a judgment for a recovery of the amount so paid on the ground that by a new contract the agreement to buy had been abrogated and the amount already paid was to be returned to him, such judgment was conclusive against the right of the vendor to recover in a subsequent action the balance of the purchase price.

*2812. Upon a motion hy the principal defendant to vacate and quash a garnishee summons as an abuse of the process, the court will not ordinarily inquire into the merits of the action itself further than to ascertain that a good-faith controversy is involved; but where the facts are of record, are before the court, and are admitted, and it clearly appears that plaintiff has no cause of action, it is within the sound discretion of the court to set aside the service of the garnishee summons and dismiss the proceeding.

Appeal from an order of tbe circuit court for Milwaukee county: F. C. Eschweilee, Circuit Judge.

*Affirmed.*

Plaintiff is a corporation engaged in tbe merchant tailoring business in tbe city of Milwaukee. On January 31, 1909, and for some time prior thereto, tbe defendant *Richards*was in tbe employ of tbe plaintiff company as a cutter. On or about that date be entered into a contract with tbe plaintiff whereby be agreed to purchase stock.of tbe corporation of tbe value of $3,000 and pay for it in instalments from time to time during tbe 'course of bis employment, and thereafter be made payments on said stock amounting to $674.62. On or about February 1, 1913, defendant *Richards*left tbe employ of tbe plaintiff and subsequently brought an action in tbe civil court of Milwaukee county against tbe plaintiff to recover tbe $674.62 paid for stock, claiming that on February 15, 1912, tbe contract to purchase stock was abrogated and an account stated between tbe parties whereby it was agreed that tbe plaintiff was indebted to tbe defendant *Richards*in the sum aforesaid. Defendant recovered judgment in tbe civil court for tbe amount claimed.

Plaintiff brought this action to recover a balance of $2,326 alleged to be due from defendant *Richards*on tbe contract for tbe purchase of tbe stock. A garnishee summons was served on the garnishee defendants herein. Upon motion of tbe defendant an order was entered vacating and quashing tbe garnishee summons as an abuse of tbe process of tbe court, and from such order plaintiff appeals.

*282Eor tbe appellant the cause was submitted on the brief of *J. W. Wegner.*

*William Kawniheimer,*for the respondent.^

Barnes, J.

It is conceded that *Richards*agreed to purchase $3,000 of the capital stock of the corporation, and that there was paid on such purchase $674.62. *Richards*brought an action to recover this latter sum, on the ground that when he left the employ of the present plaintiff he entered into an agreement with it whereby the contract for the purchase of the stock was abrogated and set aside and the *Marnitz Company*agreed to pay him the amount advanced on the purchase of such stock. The answer denied these averments, but the court found the facts to be as claimed by *Richards*and gave judgment in his favor, which was affirmed on appeal to the circuit court and paid. There was no theory on which *Richards*was entitled to the return of the money advanced on the purchase of the stock, except that a new contract was made abrogating the former agreement in consideration of the payment to *Richards*of the amounts paid on the purchase price of the stock. The existence or nonexistence of the subsequent alleged contract on which *Richards*relied was the vital issue in the case. The final judgment settled that issue for all time in *Richards’s*favor and beyond direct or collateral attack. That judgment declares that after about the middle of February, 1912, when the transaction took place, there was no agreement on the part of *Richards*to make any further payments on the stock purchased and that then and thereafter he ceased to have any interest in said stock. The *Marnitz Company*is endeavoring to open up this question for further litigation by bringing an action to recover the difference between the sum agreed to be paid for the stock and the amount paid thereon. It is elementary that this cannot be done. *Gerbig v.*Bell, 143 Wis. 157 (126 N. W. 871) and cases cited on p. 163; *Barney v. Babcock’s Estate,*115 Wis. 409, 91 N. W. 982.

*283The pleadings, findings, and judgment in the first action are part of the motion papers in the present proceeding. No issue is raised on the facts. Counsel for appellant says in his brief: “The sole question thus presented is, Was the action tried in the civil court conclusive on the subject matter involved in this case, admitting that the parties thereto were identical with the parties to this action *V’*

Counsel must either be in doubt about the application of the rule of *res adjudicata*to the case or else the action was brought for vexatious purposes. Ordinarily the merits of the action itself will not be inquired into in an application like the one before us, further- than to ascertain that there was a good-faith controversy involved. Where, as here,’ the facts are of record and are before the9 court and are not disputed and are in fact admitted, and it clearly appears that plaintiff has no cause of action, it is within the sound discretion of’the trial court to set aside the service of the garnishee summons and dismiss the proceeding. The plaintiff has not been prejudiced by the order appealed from and has no reason to complain of it. *Orton v. Noonan,*27 Wis. 586; *German Am. Bank v. Butler-Mueller Co.*87 Wis. 467, 58 N. W. 746; *Thoen v. Harnstrom,*98 Wis. 231, 73 N. W. 1011; *Dahlman v. Greenwood,*99 Wis. 163, 167, 74 N. W. 215. These cases are not precisely in point as to facts involved, but they establish the principle on which this decision is based.

*By the Court.*— Order affirmed.