Morawetz v. Sun Insurance Office, 71 N.W. 109

Morawetz v. Sun Insurance Office

71 N.W. 109

Wis.

1897

Check Treatment

Cassoday,‘O. J.

It appears from the record, and is in effect found by the court, that February 4, 1893, the defendant, a British insurance corporation having its principal office in the United States in the city of New York, issued its policy of fire insurance to the principal defendant, Klingbeil, then residing at Alliancе, Nebraska, upon his stock of general merchandise located and situated in said Alliance, for $1,200; that said property was destroyed by fire July 3,1893; that due proof of loss under such policy was made by Kling-beil, August 7,1893; that September 30, 1893, the garnishee papers were served on the defendаnt corporation’s agent in Milwaukee, but the sheriff returned that Nlingbeil could not be found in that county nor Wisconsin; that Klingbeil appeared in the action against him October 7,1893; that Octo-*177her 28, 1893, judgment was entered against him therein; that October 14, 1893, Klingbeil assigned his claim against said insurance comрany under the policy to M. E. Smith & ’Co., Kilpatrick-Koch Dry G-oods Company, and G-roneweg ■& Schoentgen, who were interpleaded herein; that thereafter said loss was adjusted, and paid by said garnisheе in Nebraska to the parties interpleaded herein, to whom the whole of the claims of said Klingbeil against the garnishee on accоunt of said loss had been so assigned, upon their giving the garnishee a bond of ind.em.nity; that the' garnishee is, and was at the time mentioned, doing business in the various states in the Union as a fire insurance company, and in the state of Nebraska under the statutes of that state; that the garnishee answerеd, setting up some of the facts stated, and denying liability; that the plaintiff took issue with such answer; that upon the trial thereof the court found the facts stated, and as conclusions of law the court found, in effect, that Klingbeil could not have brought or maintained any action against said garnishеd company in any court in Wisconsin on the said cause of action by the service of process ■upon such corporation or any officer or agent thereof, since none of the conditions existed upon which such service is authorized by the laws of Wisconsin; that this garnishment ■could not be maintained; that the garnishee was entitled to judgment herein dismissing the said garnishee action, with costs and disbursements of this action, to be taxed; and that judgment was thereupon ordered to be entered accordingly. Erom the judgment so entered thereon the plaintiff brings this aрpeal.

Under the statutes of this state, a creditor is expressly authorized to proceed by garnishment against any person having “ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any property whatever, real or personal, in his possession or under his control belonging to such creditor’s debtor.” S. & B. Ann. Stats, sec. 2752. “ The words ‘ persоnal property’ include money, goods, chattels, things in *178action. and. evidences of debt.” R. S. sec. 4972, subd. 3. “ Practically, garnishment is a seizure in the bands оf the garnishee by notice to him, creating an effectual lien upon the garnished property to satisfy whatever judgment the plaintiff may reсover in the suit in which it is issued.” Rood, Garnishment, § 1. “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.” Winner v, Hoyt, 68 Wis. 287; Globe Milling Co. v. Boynton, 87 Wis. 632; Rood, Garnishment, § 192, аnd cases there cited. “Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has been uрheld mainly upon the ground that such proceeding is substantially in rem to subject specific property or credits ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the payment of a spеcific debt.” Winner v. Hoyt, 68 Wis. 286, 287. “ Jurisdiction is the authority to hear and determine the cause, and refers to the power of the court over the parties, the res or property in contest, and the authority of the court to entertain the suit or proceeding, and render the judgment or decree which it assumes to make. In garnishment proceedings all the statutory prerequisites to commencement of suit are jurisdictional and must be strictly complied with.” Rood, Garnishment, § 221. This court has gone further, and held that, even after jurisdiction over the res or property has been acquired by the service of garnishee papers upon the garnishee, yet that such jurisdiction may be devested and lost by failure to comply with the statute as tо service upon the principal defendant or his attorney. S. & B. Ann. Stats, sec. 2756; Globe Milling Co. v. Boynton, supra. This is on the theory, often adjudicated, to-the effect that “ the authority to institutе and prosecute garnishee proceedings ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is entirely statutory, and, unless the requirements of the statutes are complied with, the proceedings cannot be sustained.” McDonald v. Vinette, 58 Wis, *179619. “Property outside of the state is not the subject of garnishment under our statute.” Bates v. C., M. & St. P. R. Co. 60 Wis. 296; Renier v. Hurlbut, 81 Wis. 30.

There is no pretense that the gаrnishee’s agent in this state upon 'whom the garnishee papers were served, had at the time in his possession or under his control any speсific property or rights of property belonging to Klingbeil. The extent of the claim is that at that time the garnishee was indebted to Klingbeil — a residеnt of Nebraska — on a polkty of insurance upon property in that state which had been destroyed by fire, and hence that such indebtednеss was attached by the service of the garnishee papers upon this foreign insurance company’s agent in Milwaukee. The plaintiff in this action, by virtue of this garnishment, stepped into Kling-' beil’s shoes, and acquired his rights of action, but he had no better right to maintain this action in the courts of this state than Klingbeil would have had. Healey v. Butler, 66 Wis. 9, 16; Rood, Garnishment, § 46. Although the plaintiff was at the time a resident of this state, yet, for the purpose of maintaining this garnishee action against this foreign corporation, he must be regarded, pro hao vies, as a resident of Nebraska, and not of this state. But Klingbeil could not have mаintained an action in any of the courts of this state against the garnishee for the cause of action stated, for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reason that оur statute expressly declares that “ such service can be made upon a foreign corporation only, either when it has property within the state or the cause of action arose therein, or the cause of action exists in favor of a resident of the state.” S. & B. Ann. Stats, sec. 2637, subd. 11; Commercial Hat. Bank v. C., M. & St. P. R. Co. 45 Wis. 172; Myer v. Liverpool, L. & G. Ins. Co. 40 Md. 595. This brings the case within the ruling of this court in Renier v. Hurlbut, 81 Wis. 24, except that the principal defendant did not appear in that case.

The general appearance of the principal defendant in the *180main action in the case at bar did not cure the dеfect in the garnishment proceedings. Rood, Garnishment, § 232; Beaupre v. Brigham, 19 Wis. 436. It has been held by a federal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court of high authority that: “ A nonresident creditor cannot hаve his propertjr in a debt seized in a state to which the debtor [corporation] may resort merely for the purpose of doing business thrоugh agents, when the claim arose on a contract not to be performed within the state, and the debtor does not reside therein. A debt has no situs, for the purpose of garnishment, in a state of which the plaintiff, defendant, and garnishee are all nonresidents, although the garnishee is а foreign corporation which, by general provisions of a state statute, is subject to garnishment in the state, because it assumes to do business there.” Reimers v. Seatco Mfg. Co. 30 L. R. A. 364; S. C. 37 U. S. App. 426; S. C. 70 Fed. Rep. 573. To the same effect: Caledonia Ins. Co. v. Wenar (Tex. Civ. App.), 34 S. W. Rep. 385; Central Trust Co. v. C., R. & C. R. Co. 68 Fed. Rep. 685; Douglass v. Phenix Ins. Co. 138 N. Y. 209.

By the Court.— The judgment of the superior court of Milwaukee county is affirmed.