14 Wis. 591 | Wis. | 1861
By e Court,
Separate appeals from two orders of tbe circuit court in tbe same action, one setting aside a judgment wbicb bad been entered on default, and the other dismissing a writ of attacbment wbicb bad been irregularly issued. Tbe irregularities of tbe writ are not tbe subject of debate, and tbe important question presented is, whether, by tbe service of summons by publication pursuant to tbe statute, and without tbe seizure of property by valid process of attacbment, tbe courts of record of tbis state can acquire jurisdiction so as to pronounce a judgment against a non-resident defendant wbicb shall be effectual and binding as against bis property wbicb was within tbe state at tbe time tbe order of publication was made. Tbe intention of tbe legislature to confer such jurisdiction seems very clear, and tbe inquiry is, whether it possesses tbe power to do so.
Tbe statute (sec. 10, chap. 124, E. S.) provides tbat when tbe person on whom tbe service of tbe summons is to be made, cannot after due diligence be found within the state, and tbat fact shall appear by affidavit to tbe satisfaction of tbe court or judge, a county judge or court commissioner, and it shall in like manner appear tbat a cause of action exists against the defendant in respect to whom the service is to he made, or tbat be is a necessary or proper party to an action relating to real property in tbis state, tbe court or judge may grant an order tbat tbe service be made by the publication of tbe summons, when the defendant is a non-resident, or his residence is unknown, hut has property within this state, and the action is on contract, and the■ court has jurisdiction of the subject of the action; tbat personal service of a copy of tbe summons and complaint out of tbe .state shall be equivalent to publication and deposit in tbe post office; and if tbe summons
Section 27 of chapter 132 provides that, if the defendant fail to answer the complaint in an action where the service of the summons washy publication, the plaintiff may, upon filing with the clerk proof of the publication and service of the summons and complaint as prescribed by law,' and that no answer has been received, apply to the court, after the expiration of the time for answering, for judgment, and the court shall thereupon cause proof to be taken of the demand mentioned in the complaint, and in case the defendant is a nonresident, shall cause the plaintiff or his agent to be examined on oath as to any payment that may have been made to such plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover; and before entering judgment, the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money .that may he collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action and shall succeed in such defense.
A summons is now the only process by which civil actions in the courts of record of this state can be commenced. R. S., chap. 124, sec. 1.
The writ of attachment is a mere provisional remedy, and can only be issued at or after the commencement of the action by the process of-summons and before final judgment.
it is manifest from these provisions of the statute that the legislature did nqt intend-to make the actual seizure of property indispensable to the jurisdiction of the court, but that the design was to substitute for it the service of summons by publication, founded upon the fact, which must be proven to the satisfaction of the court or judge making the order, that the defendant has property within the jurisdiction of the court which is liable to be taken in satisfaction of the plaintiff’s demand. There must be property amenable to the process of the court, though it need not have been actually taken by virtue of it, as was heretofore the practice. In this case the affidavit required by the statute, showing that a cause of action existed, and that the defendant was a nonresident and had property in the state which was described, (it being the same which was subsequently taken upon the defective writ-,) was regularly made, an order of publication obtained from the presiding judge, the summons published, and a copy, together with a copy of the complaint, served through the post office. So far, therefore, as the requirements of the statute are concerned, the court had jurisdiction to render the judgment, provided it is competent for the legislature to confer it in this way. We are compelí, d to think that it is.
It is a universally acknowledged principle that jurisdiction cannot be acquired or exercised over persons or property without the territorial limits of the government where the court sits, and that the legislature possesses no power to grant it. It can only be obtained of persons and property within the territory so as to be subjected to the process of the court. Jurisdiction of a defendant cannot be acquired so as to bind him personally, except by his voluntary appearance, or by due service of process within the state, and service out of the state is utterly nugatory and void for that purpose. But bis property within the state may be seized and sold for the satisfaction of his debts, and to that extent he may be bound by the judgment and proceedings had under it. This power on the part of the legislature and the courts has never
The order setting aside the writ must also be reversed. The court below held very properly, upon the first motion to set aside the writ, that the writ could not be reached until after the judgment was vacated. Applications to set aside and dismiss writs of attachment for irregularity, must be made before the trial of the action. Laws of 1859, chap. 101, sec. 5. The judgment having been improperly vacated, the second application to set aside the writ should not have been entertained.
The order in each case is reversed.