Globe Milling Co. v. Boynton

87 Wis. 619 | Wis. | 1894

Winslow, J.

Although the statement of facts is long, the questions necessary to be decided are but two in number: First. Were the garnishee actions in favor of Anderson properly dismissed because the summonses were not served on the main defendant within ten days after their service on the garnishees? Second. Was the garnishees’ claim for §1,500 damages on account of Hansen’s failure to carry out his contract properly disallowed?

1. The summons in each of the Anderson actions was served on the garnishee on the day before the service in any other case. These claims thus had priority, unless such priority has been lost. The statute provides (R. S. sec. 2756) that in case of garnishment the garnishee summons shall not only be served upon the garnishee, but upon the defendant in the main action, and that “ unless the garnishee summons be so served on the defendant, . . . or the proof of service on the garnishee shows that after due diligence such service cannot be made within the state, the service on the garnishee shall become void and of no effect from the beginning.” This is strong and radical language. There is little, if any, room for construction. We know of no feasible way of softening down the meaning of the words “ void and of no effect from the beginning ” so that they shall mean “ voidable at the election of the defendant.” Yet this is practically what counsel for appellant Anderson insists we ought to do. It is argued that only the defendant or the garnishees can make the objection, and, neither of them having made any objection, it is waived. It is further said that garnishment is a proceeding in rem, and that jurisdiction of the res is acquired by service upon the garnishee, and that the service upon the main defendant is simply a notice not essential either to the acquiring or maintaining of jurisdiction over the res.

In support of this contention much reliance is placed upon Winner v. Hoyt, 68 Wis. 278, and not without some show of reason. However, the question here presented was not in that case. In that case garnishment proceedings were brought in aid of execution upon a judgment against a firm, and it was claimed that the firm property had been fraudulently conveyed to the garnishee. Service was made upon one of the firm within the ten daj?s prescribed, and the other could not be found. It was decided in that case (and manifestly rightly decided) that so far as firm property was sought to be reached the service upon one partner was sufficient to satisfy the requirement of the' statute. This was the question presented by the facts of that case, and, consequently, the question which was decided. It was said in that case, on page 287: “ So the service of garnishee papers upon the garnishee operates as an equitable levy upon such of the debtor’s property and credits as were at the time of such service in the hands of the garnishee,” and so it was held that jurisdiction of the property in the hands of the garnishee was obtained by the service of the summons on the garnishee. This premise, and the conclusion therefrom, are undoubtedly correct; but it does not follow that jurisdiction may not be lost after it has been obtained. We know of no reason why the lawmaking power may not provide that failure to perform a certain act after jurisdiction of the res has been obtained shall divest the court of jurisdiction ab initio. The provision that a default in performance of a certain act shall render the service on the garnishee “ void and of no effect from the beginning ” would seem very clearly to divest the court of the jurisdiction provisionally obtained by the service on the garnishee. The obtaining of the jurisdiction is one of the effects of the service on the garnishee, but, if that service becomes of “ no effect from the beginning,” how can it be said that the jurisdiction remains? Such a holding is directly in the teeth of the plain words of the statute. We are not called upon to consider what might be the effect of a voluntary appearance of the main defendant in the garnishee proceedings where the rights of no other creditors are involved, and consequently do not decide that question. We entertain no doubt of the right of a creditor who has obtained an interest or lien upon the property by subsequent garnishment to raise the question.

We therefore hold that the circuit court was right in dismissing the garnishee proceedings in favor of Anderson.

2. As to the damages. The court allowed the garnishees all their expenses incurred in finishing the work upon the lumber which Hansen agreed to perform, including pay for their time and traveling expenses. These were all the elements of damage or offset which the'garnishees claimed in their answer; and, further, it appears from Boynton's own evidence that the garnishees agreed with the creditors, before taking possession of the lumber, that: “We should go on and complete as fast as possible Mr. Hansen’s part of the contract, and keep track of the expenses; and whatever there was due after we got through wTas to be turned over in these garnishee proceedings.” Ho claim appears of any other damages until the trial, when a claim is made, against objection, that by reason of delay in obtaining lumber, caused by the absconding of Hansen, the garnishees were unable to fill contracts for the sale of twenty or twenty-five carloads of lumber which they had made after the last contract was made with Hansen, and were also compelled to carry over a large amount of lumber into the next season, which they could probably otherwise have disposed of in the fall of 1891; thus keeping their capital idle and losing the interest on the money. We have carefully examined the testimony, and regard it as entirely inadequate to sustain these claims of damage. It does not appear that any such sales and shipments as twenty-five car loads of lumber at one time were within the contemplation of the parties to the contract when it v7as made. The contract specifies no time for shipment, but evidently contemplates gradual shipments, not to be necessarily completed until March 1,1892; and it does not clearly appear that the garnishees did not receive the lumber as early as was within the contemplation of the parties, and within the reasonable construction of the terms of the contract. In view of the indefinite and uncertain character of the evidence and of the facts that the garnishees have had allowed to them all the damages which they claimed in their answers (which answers were served about the middle of November, 1892), and that they stipulated with the garnishing creditors for just such an allowance as they have received, we do not think the court erred in denying the garnishees the additional damages they now claim.

A question is raised as to the judgment for interest. It is said that the allowance of interest from January 1,1893, was erroneous, and that no interest should have been allowed. There is no sufficient exception in the record upon which to base this objection. The exception is a general exception to the entire finding which finds the principal and interest due. This is insufficient to raise the question as to whether the allowance of interest was proper. Estate of Kessler, post, p. 660.

By the Court.— Judgment affirmed on both appeals.