#### Holman, Respondent, vs. Lueck, Appellant.

*December 15, 1908*—

January *5, 1909.*

*Garnishment: Effect as between garnishee and third persons: Judgment:*Res ad judicata: *Dismissal of appeal from justice’s court: Effect.*

1. In an action by tlie plaintiff, assignee of a nonnegotiable note, the defendant pleaded payment under a judgment of a justice of the peace in an action wherein defendant was summoned as garnishee. In that action, while defendant as such garnishee was present in court, the deposition of such assignee was put in evidence, wherein such assignee testified that he claimed to own the note. Defendant took no steps to notify the assignee of the garnishment action, and failed to proceed as provided'in sec. *3723b,*Stats. (1S98), to bring the assignee into the garnishment suit and thus protect himself against double liability. . *Held:*

(1) Payment of the judgment in the garnishment action was no defense in the instant action.

(2) The proof was sufficient *prima facie*to establish notice of the assignment of the note.

2. A judgment of dismissal, “without prejudice to the plaintiff’s right to bring another action,” of an action regularly before the circuit court on appeal from a justice’s judgment (whether the order of dismissal was regular or not), left no judgment in the justice’s court, and constituted no bar to a subsequent action.

3. Such judgment of dismissal, if erroneous, constituted error within the jurisdiction of the circuit court.

Appeal from a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment in favor of the plaintiff and against the defendant on two promissory notes, one for $125 and the other for $53.52. The action was brought in justice’s court, where judgment was rendered in favor of the defendant, and upon appeal to the circuit court a verdict was directed in favor of the plaintiff subject to the opinion of the court upon questions of law. It was stipulated that any *376questions of fact arising might be decided by tbe court without a jury. The court, after having the case under advisement for a considerable time, rendered judgment in favor of the plaintiff and against the defendant for the amount of the notes, $213, damages, and costs taxed at $36.77. The two notes were similar in form, made by defendant *Gharles Lueck,*and contained the provision authorizing confession of judgment at any time after date before or after due, were nonnegotiable, and páyable to Charles E. Daebel or order. The claim of the plaintiff is that the notes were for a valuable consideration transferred to him. The defense to this action was that defendant had paid the notes.under former garnishments in two suits against Daebel, payee, brought by one Radke, and in which defendant here was garnished; and also a former judgment pleaded in bar in the instant action, which judgment was rendered in a prior action between the parties to this action originally commenced in justice’s court and judgment rendered for the defendant, and appeal taken to the circuit court, where the action was dismissed without prejudice to the plaintiff’s right to bring another action. ,

Eor the appellant there was a brief signed by *Marsh & Schoengarth,*and oral argument by *8. M. Marsh.*

For the respondent there was a brief by *Ryan, Merton & Newbury*and *Homer 8. Clark,*and oral argument by *E. Merton.*

KjeewiN, J.

The appellant contends (1) that the plaintiff’s cause of action was barred by payment under orders of the court in the garnishee proceedings; and (2) that judgment in former action between the same parties to this action is a bar. '

1. Under the first contention it appears from the record that two actions were commenced in justice’s court by one Radke against Daebel, payee named in the notes here in *377suit, one in September, 1903, and tbe other in April, 1901, and the defendant in this action garnished in said actions. Snch proceedings were had that judgment was rendered against the defendant Daebel in said actions, and orders entered requiring the defendant here to pay the amount of his indebtedness on said notes into justice’s court in satisfaction of said judgments. The money was paid into the justice’s court in compliance with the orders. The question arises whether the payment by defendant *Lueck*under the former garnishee proceedings is a defense to the instant action, and this question turns upon whether the defendant *Lueck*had notice that the present plaintiff, Holman, claimed to own the notes. It is insisted on the part of the appellant that there is no proof of notice to defendant *Lueck.*In the first garnishee action brought in justice’s court before referred to, the Commercial State Bank as well as defendant *Lueck*was garnished. On the return day of the garnishee summons the bank appeared by its attorney and *Lueck*appeared in person. The case was adjourned for .three weeks, and on the adjourned day the bank appeared by its attorney, and *Lueck*appeared in person and made oral answer. The bank also answered by way of general denial. During the proceedings on the adjourned day the depositions of Charles Daebel, *Mr.*Holman, and Mrs. John Schafer were put in evidence by the bank. The contents of these depositions disclosed the fact that *Holman,*plaintiff here, claimed the notes in suit. The present suit was commenced in justice’s court after the Radke garnishee proceedings where judgment went for defendant, and on appeal to the circuit court judgment was given for the plaintiff upon the two-notes. In the Radke garnishee action the defendant *Lueck*took no steps to bring notice to *Holman*of the Radke garnishee, and failed to proceed as provided by sec. 3723&, Stats. (1898), to bring the defendant *Holman*into the Radke garnishee suits and thus protect himself against double liability. So, if defendant *378*Lueck*bad notice of tbe claim of plaintiff *Holman*in time to avail bimself of tbe statutory protection, tbe payment under tbe orders in the Radke garnishees is no defense against tbe plaintiff *Holman. Adams v. Filer,*7 Wis. 306; *John R. Davis L. Co. v. First Nat.*Bank, 81 Wis. 1, 54 N. W. 108; *Frels v. Little Black F. Mut. Ins. Co.*120 Wis. 590, 98 N. W. 522. Tbe court below beld that defendant bad notice. Tbe record in justice’s court in tbe Radke garnishee action shows that *Lueck*was in justice’s court on tbe adjourned day and was put upon tbe witness stand and examined respecting tbe pending issue. On the same day and, as appears from the justice’s docket, at or about the same time the defendant *Lueck*was examined, the depositions of Daebel, Holman, and Mrs. Schafer were put in evidence, and it further appears that the $125 was in possession of the bank, garnishee. The depositions having been filed with the justice, setting forth plaintiff’s claim to the notes on the adjourned day, and at or about tbe *time Lueck*was in court and being examined, we think the evidence sufficient to warrant the court below, in the absence of any showing to the contrary, in finding that defendant *Lueck*had notice of plaintiff’s claim to the notes. It also appears that no denial by defendant was made of notice. If, as a matter of fact, he had no actual notice of the contents of tbe depositions, be doubtless would have gone upon the stand and so testified. We think the proof was sufficient *prima facie*to establish notice. 16 Cyc. 1072; *John R. Davis L. Co. v. First Nat. Bank, supra.*

2. Action was brought in justice’s court on the notes in suit. Judgment was rendered against plaintiff and be appealed to the circuit court. Tbe plaintiff took a dismissal in circuit court, and obtained an order of dismissal “without prejudice to the plaintiff’s right to bring another action.” Afterwards the present action was commenced, and it is insisted that the former judgment of dismissal was a bar. We *379cannot agree with appellant in this contention. Tbe circuit court bad jurisdiction on appeal of the parties and tbe subject matter, and, wbetber tbe order of dismissal was regular or not (a point we do not decide), it is clear tbat it was witbin tbe jurisdiction of tbe court to make it. Tbe whole case was removed from tbe justice’s court by tbe appeal, and tbe action was in tbe circuit court for all purposes. "When ' tbe action was dismissed in circuit court it was out of botb courts, justice’s and circuit, for all purposes. There never having been a trial on tbe merits in tbe circuit court, where tbe case was regularly carried by appeal, and tbe case having been dismissed by order of tbe court without prejudice to tbe plaintiff’s right to bring another action, we see no ground for bolding tbat tbe former judgment is a bar. Tbe dismissal of tbe action in circuit court left no judgment in the justice’s court. But it is argued by counsel for appellant tbat because' no affidavit for new trial was filed on tbe appeal and tbe judgment not exceeding $15, exclusive of costs, tbe appeal could be beard only on tbe original papers under secs. 3767, 3768, Stats. (1898), and therefore tbe circuit court could not dismiss tbe action, but must proceed to dispose of it in tbe manner provided by sec. 3769, Stats. (1898), namely, to give judgment according to tbe weight of tbe evidence and tbe justice of the cause, without regard to errors which do not affect tbe merits and without regard to the findings of the-justice, and may amend pleadings, render an affirmative-judgment, or affirm or reverse tbe judgment in whole or in part, either as to damages or costs, or botb, as to any of the-parties, and for errors of law or fact.

' It is unnecessary to determine upon this appeal wbetber tbe court below was in error in dismissing the action. If error, it was error witbin its jurisdiction. Counsel for appellant seem to think tbat tbe court bad power to dismiss tbe action, and tbat tbe wrong committed was in dismissing it without prejudice, because, tbe case being before the circuit *380court for review, tbe dismissal operated as a bar to any subsequent action upon the notes. But the judgment of dismissal could not have this effect. The justice’s judgment was disposed of by the appeal and dismissal of the action, and the order of dismissal superseded the justice’s judgment and terminated the action. The court had jurisdiction to render a judgment and dispose of the case. It did so, and whether the judgment was right or wrong it was no bar to the present action. It follows that the judgment b'elow was right and must be affirmed.

*By the Court.*— The judgment is affirmed.