Eureka Steam Heating Co. v. Sloteman

| Wis. | Nov 3, 1886

Cassoday, J.

1. The notice served on the attorney for the defendants, March. 12, 1886, though a portion of it was in the form of a notice of appeal, could not have that effect for several reasons. It was not accompanied by an undertaking as required by sec. 3052, R. S., and hence, as a notice of appeal merely, was ineffectual “ for any purpose.” The order or judgment on the traverse was not in fact entered until the next day, and hence that notice might, perhaps, have been regarded as premature had it been accompanied by an undertaking. Besides, “ an appeal must be taken by serving a notice” of appeal “on the adverse party, and on the cleric of the court.” Sec. 3049, R. S. Here that notice was not served on the clerk of the court at all on the part of the plaintiff, but was filed with the clerk in pursuance of an order of the court made March 27, 1886, requiring it to be filed nunc pro tunc as of March 12,1886. For these reasons that notice must be regarded as a mere notice of the plaintiff’s intention to appeal, and to fix the amount of the undertaking to be given upon such appeal.

2. The notice of appeal, as served March 15,1886, was in form from the three several orders therein mentioned. Under the recent act of the legislature a party appealing to this court “ may embrace in one appeal two or more orders, with or without the judgment, provided such orders are ap-pealable and the time allowed for appealing from them has not expired.” Oh. 49, Laws of 1883. The same act provides that but “one undertaking shall be necessary,” and that “ shall be in the terms prescribed by sec. 3052, R. S., except where the sum or effect of an undertaking is required by the provisions of law to be fixed by the court or judge, in which case the undertaking shall be in accordance with said provisions.” Here it does not appear that the time allowed by the statutes for appealing from either of said orders had expired. No copy of either, “ with a written notice of the entry of the same,” appears to have been served so as to limit the time for appealing to thirty days, as provided in sec. 3042, E. S.; and the limitation “ to two years from the date of the entry of such . . . order,” provided in sec. 3039, E. S., had not expired. The serving of that undertaking and notice of appeal was the perfecting of an appeal from each of the several orders mentioned therein, unless the indorsement upon the notice by the judge operated as a cancellation of so much of the notice as related to the first and second orders. Did it have that effect?

The right of appeal from orders, as well as judgments, is given by statute. The purpose of an appeal is to take the order or judgment, or some part thereof, to another jurisdiction for review. If the jurisdiction from which the appeal is taken has power to restrict the appeal to one of three several orders, then, upon the same principle, it might restrict it to a certain portion of one order, or preclude the party from taking any appeal whatever. An appeal is not thus a mere gratuity or favor to be granted or withheld in the discretion of the trial court, but an absolute right, if exercised within the time and in the manner prescribed by statute. The wording of the notice of appeal must be left to the party appealing. The undertaking to be given in this case was to be “ in such sums as the court or presiding judge thereof” should direct, under sec. 3054, E. S. Of course, the amount to be named in the undertaking depended, not only upon the amount and subject matter of the controversy, but the nature and extent of the appeal. If, in fixing the amount of the undertaking, the judge of the trial court was misled as to the extent or scope of the appeal to be taken, as he obviously was, then he might, probably, have modified the order fixing such amount and required an additional undertaking. But this was not done. We must treat each of the three appeals, therefore, as being fully perfected.

3. The order of- November 28,1885, making the assignee for the benefit of creditors a party defendant, with leave to defend the action and the several garnishee proceedings and to traverse the attachment, in no way prejudiced the plaintiff. The assignor, as well as the assignee, did appear and traverse both of the affidavits for the attachment, as he had the right to do. Howitt v. Blodgett, 61 Wis. 380; Rice v. Wolff, 65 Wis. 5; sec. 2745, R. S. This being so, the plaintiff was in no way aggrieved by reason of that order, and hence the plaintiff has no ground for the reversal of it. McGregor v. Pearson, 51 Wis. 122" court="Wis." date_filed="1881-01-11" href="https://app.midpage.ai/document/mcgregor-v-pearson-6603357?utm_source=webapp" opinion_id="6603357">51 Wis. 122. It was wholly immaterial so far as the traverse of the attachment was concerned, and the trial thereon in this case.

4. The statute provides, in. effect, that “ when the answer of the defendant in any case, expressly, or by not denying, admits part of the plaintiff’s claim to be just, the court majr, on motion, order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.” Sec.' 2892, R. S. Here the action arose upon “ contract for the recovery of money only,” and the answer expressly admitted a very large portion of the plaintiff’s claim to be just and due .and payable before the commencement of the action. Such being the state of the pleadings, the plaintiff was clearly entitled to “ judgment for the amount so admitted to be due,” as provided in the forepart of that section. Buffalo Barb Wire Co. v. Phillips, 64 Wis. 339. The plaintiff’s right was none the less because he applied to the court under the clause of the section quoted. The enforcement of the order to satisfy, as indicated therein, is manifestly to be by judgment and execution, as “ in an action arising on a contract for the recovery of money only.” The plaintiff’s right, in this regard, was independent of, and in no way frustrated by, the pending issue on the traverse.

5. The testimony taken upon the trial of the traverse seems to have been sufficient to sustain the attachment upon the merits. The contrary does not seem to be seriously claimed. The principal contention is that it appears from such evidence that Kelley, who made both affidavits in support of the attachment, and testified therein that he made such affidavits for and on behalf of the plaintiff and at its request and as its agent, nevertheless got no authority to so act and testify from any of the officers of the plaintiff, but only from its attorney of record in this case; in other words, that an attorney at law, charged with the duty of collecting a claim, cannot delegate to one knowing the facts, authority to so act as agent for the plaintiff in making such affidavit.

Undoubtedly an attachment is a harsh remedy. Accordingly it has frequently been held by this court that the affidavit must state substantially the things required by the statute in order to give the court jurisdiction. Sec, 2731, E. S. Here each of the affidavits contained the requisites of that statute. That gave the court jurisdiction. Moreover, when the defendant in the attachment appeared, by way of special answer, and traversed the allegations contained in the respective affidavits, then, certainly, “ he was in court, and jurisdiction was thereby acquired of his person.” It was so held by this court where the defendant was a nonresident and the service by publication was claimed to be defective, in Williams v. Stewart, 3 Wis. 773" court="Wis." date_filed="1854-06-15" href="https://app.midpage.ai/document/williams-v-stewart-6597226?utm_source=webapp" opinion_id="6597226">3 Wis. 773. The court having acquired jurisdiction, the question to be tried was whether there wras any ground for the attachment. Thus, in Davidson v. Hackett, 49 Wis. 186" court="Wis." date_filed="1880-04-20" href="https://app.midpage.ai/document/davidson-v-hackett-6603123?utm_source=webapp" opinion_id="6603123">49 Wis. 186, it was held, on such traverse, that the issue was “ whether the alleged fact of fraud or nonresidence existed, and not whether the affiant knew or had good reason to believe in its existence,”

From this it appears that it is not every fact stated in the affidavit and essential to give jurisdiction that must be established by evidence on such traverse, notwithstanding the plaintiff has the affirmative of the issue. Ibid.; Lord v. Devendorf, 54 Wis. 496. The issue on such traverse is as to “ the existence ” or “ nonexistence, at the time of the making of the affidavit, . . ." of any or all the material facts stated therein, except the alleged liability, and the amount thereof.” Sec. 2145, R. S. But, as held, whether the affiant knew or had good reason to believe in the existence of any such material facts was not an issuable fact, and hence not traversable. By parity of reasoning, we must hold that whether the person making the affidavit got his authority so to act from some officer of the plaintiff, or only from its attorney, is not a traversable fact.

Besides, the language of the statute as to the point raised is very broad: “ The plaintiff, or some one in his behalf \ shall make ” the affidavit. Sec. 2731, R. S. Kelley made the affidavits in question in behalf of the plaintiff. The plaintiff is a corporation, and, of course, could make no affidavit. The affidavit could only be made by some one knowing the facts. The plaintiff’s officers might not have known of the facts. In all cases of nonresident plaintiffs it might be difficult for them or their principal officers or agents to ascertain the facts, and then only after much expense and great delay, which might defeat the attachment altogether. Accordingly the legislature deemed it sufficient if “ some one in behalf ” of the plaintiff makes the requisite affidavit. This does not mean that the affidavit is sufficient if made by a mere intermeddler, but by some one acting in good faith and authorized to institute the proceedings, or one procured by such person. But even the question of the existence of such authority does not seem to be at issue on the traverse.

By the Court.— The order of the county court dated November 28,1885, is affirmed, and the orders of the county court, respectively dated February 6, 1886, and March 13, 1886, are each reversed, and the cause is remanded for further proceedings according to law. No costs are allowed to either party in this court, except the respondents must pay the clerk’s fees.