79 Wis. 436 | Wis. | 1891
The respondents commenced an action against William Keefe on contract, and in said action the said appellants Brigham and Mussel were summoned as garnishees, claiming that they were debtors to the said defendant Keefe. On the trial of the garnishee action the respondents recovered a judgment against the appellants for the sum of $930.74, and from the judgment entered in favor of the respondents the said garnishees appeal to this court.
Upon the hearing of the appeal in this court the appellants assign for error: “(1) That the court erred in admitting evidence; (2) that the court erred in denying appellants’ motion for a nonsuit; (3) that the court erred in excluding evidence; (4) that the court erred in instructing the jury; (5) that the court erred in denying appellants’ motion to set aside the verdict and grant a new trial.”
After a full consideration of the record, we have concluded that the respondents were not entitled to a judgment against the garnishees at the time of the trial in the court below, nor at the time the judgment was entered against them. We have arrived at this conclusion from the fact that the record discloses that the proceedings in the action by the respondents against their original debtor, Keefe, were void, and that no valid judgment had been rendered against Keefe in said action. The record shows that the
That this order is irregular and void is clear under the provisions of the statute authorizing service by publication. Sec. 2640, B. S., which prescribes what the order shall contain, reads as follows: “ The order mentioned in the preceding section shall be made by the court or a judge thereof. The application therefor shall be based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist; and that the plaintiff is unable, with due diligence, to make service of the summons upon the defendant in respect to whom such order is applied for; and also the post office address of such defendant, or that the plaintiff is unable, after due diligence, to ascertain it. The order shall direct that service of the summons be made by its publication in a newspaper to be designated as most likely to give notice to the defendant to be served, for such length of time as shall be deemed reasonable, not less than once a week for six weeks; and that on or before the day of the first publication the plaintiff deposit, in a specified postoffice, a copy of the summons, together with a copy of the complaint, or of a notice of the object of the action, as the case may require, securely inclosed in an envelope, the postage duly paid, addressed to the defendant at his post-office, .to be therein named, or a direction that such deposit may be omitted because the defendant’s postoffice address oannot be ascertained; or that, at the plaintiff’s option, a copy of the summons, and a copy of the complaint or of the notice aforesaid, be delivered to the defendant personally without the state; which, when done, shall have the same effect as a completed publication and mailing. The first publication must be made within three months from the date of such order, and service shall be deemed complete at
The right of the court to proceed against a nonresident defendant, in order to Subject his property within this state to the process and jurisdiction of the courts -of this state,without obtaining personal service upon him within this state, is regulated solely by statute; and this court, as well as all the other courts, hold that the statute must be strictly complied with in order to give any validity to a judgment rendered on such proceedings. Anderson v. Coburn, 27 Wis. 558, 563; Cummings v. Tabor, 61 Wis. 185, 191; Manning v. Heady, 64 Wis. 630; Witt v. Meyer, 69 Wis. 595; Galpin v. Page, 18 Wall. 350, 369; Morse v. Presby, 25 N. H. 302; McMinn v. Whelan, 21 Cal. 300; Likens v. McCormick, 39 Wis. 313. Several cases will be found cited on page 1520, S. & B. Ann. Stats., showing the strictness with which proceedings of this kind must conform to the statute in order to give the court jurisdiction to enter judgment therein. Pollard v. Wegener, 13 Wis. 569; Fladland v. Delaplaine, 19 Wis. 459. That the part of the order which directs the place to which the summons and complaint must be mailed is a material part of the order is made evident from the reading of the section above quoted. In the first part of the section it requires the applicant for the order to state in his affidavit the postoffice address of the defendant, if known, and, if not known, that he is unable, after due diligence, to ascertain the same; and in giving the form of the order it is required that the order shall “ direct that the plaintiff shall deposit in a specified post-office a copy of the summons, etc., addressed to the defendant at his postoffice, to be therein named, or a direction that such deposit may be omitted because the defendant’s postoffice address cannot be ascertained,” etc. .The object of this requirement is to bring notice to the defendant that
The learned counsel further insist that, as they did not publish the order or mail the summons and complaint as directed by the order, but served the papers personally upon the defendant out of the state, as authorized by the statute and the order’, the defect in the order should not vitiate the proceedings. Put under the statute no service of the summons and complaint on the defendant out of the state can have any efficacy to give the court jurisdiction to render judgment against the defendant unless the plaintiff in the action shall first procure a valid order for publication in the manner prescribed by law; and, when such order is obtained, then, and then only, the defendant may, in lieu of publication and mailing the summons as directed in the order, serve them personally on the defendant outside of the state, and in such case such service outside of the state is substituted for the publication of the order and mailing the summons and complaint. In order to attain jurisdiction to enter judgment against the defendant, who is a nonresident, and is not served in the state, and who does not voluntarily appear in the action, a valid order for publica
One of the reasons for holding this rule, in addition to the express declaration of the statute on the subject, is to make the judgment against the garnishee conclusive against the original debtor in an action by him against the garnishee for the same debt which has been garnished in such garnishee action. This end is further secured by the requirement of sec. 2756, R. S., requiring a service upon the original debtor of a notice of the commencement of the garnishee action, whenever he can be found within the state, or has appeared by attorney in the original action.
It seems to us clear that the judgment in this case was irregular and void, and that under the statute no judgment can be had against the garnishees until a valid judgment has first been obtained against Keefe in the action against him.
By the Court.—The judgment of the circuit court is reversed, and the cause is remanded for a new trial.