Champion v. Argall

25 Wis. 521 | Wis. | 1870

Cole, J.

We entirely agree with the circuit court in holding that the justice did not obtain jurisdiction, in the attachment proceedings, of the person of the defendant, and had no authority to render judgment therein.

It appears that the plaintiff in the justice’s court commenced an action upon a money demand against the defendant as an absconding debtor. The warrant of attachment was issued May 2, 1868, and made returnable on the fifth. The warrant was served by attaching property, and by leaving a copy at the defendant’s usual place of abode with his wife, informing her of the contents thereof, the defendant not being found in the county. On the 5th of May, the return day of the writ, the, plaintiff appeared, proved his account, and obtained judgment for the amount of his claim. And the question is, Was the service of the writ of attachment sufficient to give the justice jurisdiction ? We think not. The statute provides that the officer shall execute a warrant of attachment by summoning the defendant as in case of summons, if to be found within the county, and by attaching his goods, etc. Sec. 102, ch. 120, R. S. When the defendant cannot.be summoned, and his property or effects shall be attached, if he do not appear to the action at the return of the writ, the justice must enter an order on his docket requiring the plaintiff to give notice to the defendant, by publication or otherwise, as prescribed in sections 106, 107 and 108; and if the defendant, after being thus notified, does not appear and answer to the action, that fact must be entered by the justice in his docket, and the plaintiff may then proceed thereon to final judgment, as in actions commenced by summons. Sec. 109. So, where there is no personal service of the writ of attachment,, the statute manifestly contemplates that the defendant shall have, further notice that a writ has been issued against him and his property attached, which notice is to be either published or posted for at least fifteen days before the defendant is required to appear.

To this view of the statute, however, it is objected, that section 102 declares that “the officer shall execute a warrant of attachment, by summoning the defendant as in case of summonsand it is insisted that this plainly meant that the writ was to be served as an ordinary summons. The statute provides that the justice may issue, in actions commenced before him, what for convenience may be termed a long and a short summons. The first is made returnable in, not less than six days, and need not be personally served. Secs. 16,18 and 27. The short summons is issued in special cases upon affidavit, and is returnable in three days, and must be personally served not less than two days before the time of the appearance therein mentioned. Secs. 22 and 27. Now we have no doubt that where the statute provides that the warrant of attachment shall be executed “by summoning the defendant, as in case of a summons,” the short summons is the one referred to. The warrant of attachment in this case was made returnable in three days, and had there been personal service upon the defendant, as in case of short summons, the justice would have been authorized to proceed to final judgment. It would certainly be singular legislation to require that a short summons should in all cases be personally served, and that a warrant of attachment returnable in the same time, where property is attached, be allowed to be served by copy. But because the process is returnable in so short time in each case, or because the remedy by attachment is regarded as prompt and severe, the legislature doubtless intended that the warrant of attachment should -be personally served, or that further notice, by publication, should be given the defendant. The words of the section as naturally refer to the short as to the long summons, while the principles of reason and justice are more fully answered by holding that they relate alone to the former process, and contemplate personal service or publication.

The judgment of the circuit court must therefore be affirmed.

By the Court. — Judgment affirmed.