Kremer v. Arians

141 Wis. 662 | Wis. | 1910

Dodge, J.

1. Jurisdiction of tbe justice is assailed be-' cause on tbe return day of tbe garnishee summons tbe execu-' tion was returned nulla bona,. No statute or bolding of this court is cited declaring any necessity for tbe execution to persist. Tbe service of tbe garnishee summons is not a seizure of property upon tbe execution, for it is only authorized in case no property can be seized. Sec. 3100, Stats. (1898). It is tbe institution of an action against tbe garnishee, to proceed like other actions. Id. It depends, under our statutes, not on any levy or seizure by virtue of tbe execution, as in some states, but on tbe absence of such levy. Seizure being not an essential to tbe jurisdiction of tbe suit, persistency of the particular execution seems in no wise necessary to tbe continuation of tbe justice’s jurisdiction to bear and decide tbe action. His custody of tbe disputed property even when turned over to him is not retained by authority of tbe execution, which runs, and gives authority, only to tbe constable or sheriff. Tbe justice’s- right rests on tbe special statute authorizing him to receive and bold tbe property when surrendered by tbe garnishee in response to tbe summons and in exoneration of tbe latter’s personal liability. See. 3Y23&, Stats. (J898). For these and other reasons we are satisfied that our statutory scheme does not contemplate the perpetuation of tbe execution by monthly renewals during tbe months or years through which the trial of questions of ownership- of tbe disclosed property may be protracted, not only before tbe justice, but, on appeal, in other courts; and therefore that no loss of jurisdiction resulted from its return malla bona.

2. Tbe claim that tbe judgment is void because there is no •showing that the sheriff could not find sufficient property to levy on is entirely met by the presence of the officer’s return that up to the return day, December 18th, he had been unable by diligent search to find any such property. This necessarily negatives the finding of any at any earlier time.

3. Jurisdiction of the circuit court on appeal is assailed on the ground of defects in the notice of appeal. That notice, correctly addressed to the justice of the peace, entitled the action "F. A. Kremer, Plaintiff, v. Barbara Arians, Defendant,” and stated that the plaintiff appealed “from the judgment rendered in said court before you in the above-entitled action on the 8th day of March, 1909, in favor of the defendant and against the plaintiff for the sum of $105 damages and —■- dollars costs.” It is undoubtedly true that earlier decisions of this court tended to very strict and technical rules in appellate procedure. Decent decisions,, however, have much modified the technicalities, and, recognizing that the law favors appeals from the lower courts, have tended to the more rational rule that any fair and intelligible description sufficient to enable the justice from his records, and the respondent from his knowledge of the situation, to identify the judgment, from which the appeal is intended, will suffice to confer jurisdiction. The tendency of these later cases reached its culmination in Cowles v. Neillsville, 137 Wis. 384, 119 N. W. 91, wherein are collected most of the earlier ones, except Hanrahan v. Janesville, 137 Wis. 1, 118 N. W. 194. The statute (sec. 3754, Stats. 1898) requires merely presentation to the justice of a notice of appeal. The notice in question is criticised, firsts because of the title to the action wherein the impleaded claimant of the property is named as defendant. The statute provides that upon the service of the garnishee summons shall be instituted an action in which the plaintiff in the original action shall be plaintiff and the garnishee, defendant This action when originally commenced, therefore, was correctly entitled Kremer, Plaintiff, v. Hoppmann, Defendant. When Hoppmann brought the property into court and impleaded Barbara Arians and she claimed the property, and by order of the court she was made a party and he discharged, he certainly was no longer defendant, and she as clearly became defendant within the theory of our garnishee proceedings. See sec. 2767, Stats. (1898), which declares that the claimant in case of interpleader shall become a defendant. Therefore the title used in the notice of appeal was technically correct; in any event, it permitted of no uncertainty as to the action intended to be described. In that action there was but one judgment, and that on the date correctly specified in the notice. That was a judgment, as stated in the notice, against the plaintiff and in favor of the. defendant named. The notice, evidently by reason of the use of a printed form, then contained the words “for the sum of $105.” Of course that was not a technically correct description of the judgment, for the defendant did not recover judgment for any sum, but she did defeat liability of herself and the claimed property for a judgment in a principal action wherein the amount claimed was $105. So that in a certain sense the judgment was in her favor to that amount. It N true, also, that the notice, while stating that the judgment was also for costs, did not state the amount of such costs, but left it blank. We are persuaded that under the liberal rule declared in the foregoing authorities neither the justice of the peace nor the defendant could have failed, by the exercise of ordinary intelligence and from an inspection of the record in this case, to ascertain what judgment was complained of by the plaintiff notwithstanding such'ambiguous statements, which at best were mere surplusage. That being so, the notice was sufficient to confer jurisdiction upon the appellate court.

4. The judgment of the circuit court is assailed, first, because, as is asserted by appellant, there was no proof that me right of Mrs. Reynolds to the property in Hoppmann?S'-bauds bad become absolute at tbe time of tbe service of tbe garnishee summons. This contention, however, is met by an. express finding by tbe circuit court that tbe facts bad occurred to make sucb right absolute at that time, which finding is without exception. It therefore is a verity behind which we cannot look for evidence one way or the other. Sec. 30Y0. Tim only other attack upon the judgment is that the finding of the-trial court that the transfer frona Mra Reynolds to the appellant was made with intent to defraud her creditors, and especially plaintiff, is not in aecord-with the evidence. Upon this contention it suffices to say that we do find many facts- and circumstances justifying some inference of fraudulent intent and participation therein by appellant, and, while there is-testimony of interested parties tending to establish good faith, we do not discover any such clear preponderance against thu finding of the trial court as to justify setting it aside.

By the Court. — Judgment affirmed.