18 Wis. 69 | Wis. | 1864
By the Court,
In this case a summons and writ of attachment were placed in the sheriff’s hands, at the same time, for service. He served the attachment by notifying a person alleged to have property of the defendant in his hands, to anpear and answer. This service was made on the 9th of September. But the summons was not served on the defendant until the 21st of September.'
The defendant afterwards appeared and moved to set aside the attachment because it had' been served before the service of the summons. And the court held that though the attachment might be issued before the service of the summons, yet . it could not be regularly served before the summons. The motion was denied, however, upon the ground that the defendant by appearing had waived the irregularity. Whether that conclusion is correct or not, we do not find it necessary to inquire. A general appearance waives all defects in the process designed to get the party into court. After he has come in, it is immaterial whether the process to get him in was good or bad. But whether such waiver could be extended to defects in a writ of attachment or in the service of it, under the present practice, where such writ is not process to bring the party in, orto get jurisdiction of his person, may be perhaps doubtful. But we think the motion was properly denied for the reason that the writ may be not only issued but served before the summons is served, the latter having been made out and placed in proper hands with a bona fide intent to serve. The courts of New York have made a distinction between the attachment authorized by sec. 227 of their amended Code, and that previously authorized by their Revised Statutes, which was also re
We have so far assumed that the writ of attachment now authorized by our law is in the nature of that authorized by the New York Code, as to hold that it was not the process by which suits are commenced, but a mere remedy designed to aid in a suit. Chase v. Hill, 13 Wis., 222; Jarvis v. Barrett, 14 id., 591. But it cannot be inferred from those decisions, that the character of such an attachment as' a proceeding in rem has been so far abolished that it can only be resorted to in an action in which the court has acquired or at least can acquire personal jurisdiction over the defendant, as was held in the case above referred to in the 2d Sanford. For the case of Jarvis v. Barrett was, like that, a case against a non-resident, and it was conceded that even by a proper publication of the summons, the court could acquire no personal jurisdiction of the defendant. Yet it was held that the suit could proceed, and that “it was in the nature of a proceeding in rem, as when an attachment was required.”
While, therefore, we have applied the doctrine of the New York courts concerning their Code attachment to our writ to some extent, yet we have not held that they are altogether alike. And this could not well be held. There is a marked difference between the language of sec. 227 of the New York Code and that of our statute. The former provided that “in an action for the recovery of money ” against certain parties the plaintiff might, at the time of issuing the summons or at any time afterwards, have the property of the defendant attached as a security, &c. In the case in the 2d Sanford, stress was laid upon the words “in an action,” and I should not be pre
The only ground for holding otherwise is derived from a lit
There is nothing in the case of Jarvis v. Barrett conflicting with this conclusion. That case oifly decided that an attachment of property was not essential to the validity of the judgment. But while expressly holding that the creditor might attach, if he did not choose to run the risk of a sale or removal of the property, whether he could do so before the service of the summons or not, was not passed on.
The order is affirmed, with costs.