87 Wis. 619 | Wis. | 1894
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
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
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
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.