40 N.W.2d 515 | Wis. | 1949
On May 20, 1941, Betty Schultz commenced an action against Emil and Nettie Schultz to recover upon a $1,500 note which was past due. The complaint alleged that the note was executed in Wisconsin while the defendants were residents of Wisconsin, but that they had removed to California and were at the time of commencement of the action residents of San Diego, California.
The complaint further alleged that the plaintiff was a resident of Minnesota and that the plaintiff and defendants each owned property in Shawano county, Wisconsin.
Service of the summons and complaint was made upon the defendants at San Diego, California, on May 20, 1941.
On June 20, 1941, plaintiff's attorney filed his affidavit describing the property owned by each of the defendants in Shawano county, and averring that Emil Schultz was a residuary legatee in the estate of Adeline Schultz, then in process of administration in the county court of Shawano county.
The defendants did not appear in the action.
Upon the record and proofs being offered by plaintiff's counsel that the full amount of the note, together with interest, was due and that demand had been made upon the defendants, judgment was entered for $1,500 principal, $396.46 interest, $225 attorney's fees provided in the note, and $58.25 costs.
Betty Schultz assigned this judgment to E. F. Hartman, who intervenes as a party to this action.
A garnishment proceeding was brought to reach the share of Emil Schultz in the estate of Adeline Schultz and, no appearance being made, $250 was applied on the judgment. An execution was issued on the real estate owned by the defendants in Shawano county and described in the affidavit mentioned previously. *141
On January 28, 1949, defendants appeared specially and moved that the judgment be declared null and void. The motion was based on the ground that the action was apparentlyin personam, that the court had never acquired jurisdiction over the nonresident defendants and that the property they owned in the state was not attached at the commencement of the action, as required by Pennoyer v.Neff (1877),
On April 21, 1949, the circuit court entered an order denying the motion. Defendants appeal. If the judgment is in personam, it must be held invalid because no jurisdiction was obtained over the appellants.
The respondents contend that the proceedings were sufficientin rem and rely upon previous decisions of this court.
In Jarvis v. Barrett (1861), 14 Wis. *591 (syllabus), it is said:
"By the service of summons by publication pursuant to the statute, without a seizure of property by attachment, the courts of record of this state may acquire jurisdiction in an action upon contract so as to pronounce a judgment against a nonresident defendant, which shall be effectual and binding as against his property which was within the state at the time the order of publication was made, and is not removed from the state or sold to a purchaser in good faith before the judgment is rendered.
"The essential fact upon which such jurisdiction is made to depend is, property of the defendant in this state, and not its seizure upon attachment, and that fact, it seems, may at *142 any time be inquired into for the purpose of impeaching the jurisdiction.
"Such a judgment is effectual only against the property specified in the affidavit on which the order of publication is based, or, at most, only against such as is within the jurisdiction of the court while the action is pending and when the judgment is pronounced.
"If the creditor desires to guard against the contingency of a sale or removal of the property before he can obtain a lien by judgment or by means of execution, he may take the attachment also; and if he omits to do so, and the property is in the meantime removed from the state or sold to a purchaser in good faith, the judgment will be fruitless."
In Winner v. Fitzgerald (1865), 19 Wis. *393, *396, *397, the court, considering the question, said:
"Ordinarily in actions in rem there is both possession and lien before judgment. The property is seized by virtue of a writ of attachment. This is not, however, the only mode of creating or acquiring a lien. Liens are given in many cases by the common law and by statute, which courts enforce against the property of nonresident defendants. The legislature might have provided that the commencement and pendency of the action should create a lien on the real estate, and perhaps on the personal property of the defendant within the jurisdiction of the court. The statute, if valid, clearly authorizes an action and judgment against a nonresident defendant, who neither appears nor is served with process except by publication of the summons, and whose property is not, nor is any of it, in the actual or constructive possessionof the court, nor has the plaintiff any lien thereon, or any right, title or interest in or to it. I am inclined to the opinion that such a suit is not a proceeding in rem, and that the statute authorizing it is void; or rather that proceedings under it are of no validity unless a writ of attachment, follow the summons, and the defendant's property is actually seized before the judgment is rendered. But this is not the opinion of the court. The majority of the court hold, as in Jarvis v.Barrett, 14 Wis. *591, that the statute is valid, and that the judgment rendered in actions under it is good as against the property specified or particularly described in the affidavit. *143 They also hold that in the affidavit the property of the defendant within this state must be so described that the officer signing the order of publication may be able to see that it is such property as is liable to be seized on attachment or execution, and unless it is so described the proceeding isvoid. It not being so described in this case, the order of thecourt below is reversed, with costs, with directions to vacatethe judgment."
Respondents cite Closson v. Chase (1914),
"There are two good answers to that. First it is evident that the so-called second issuance of the summons was only a second placing in the hands of the sheriff for service. Second. The issuance of a writ of attachment and levy upon property thereunder is not essential to competency to make service on a defendant by publication. Gallun v. Weil,
Disconto Gesellschaft v. Umbreit (1906),
Respondents likewise rely upon Gallun v. Weil (1903),
"There is no controversy here but that all the requisites to the issuance and execution of the writ were fully complied with. If the facts alleged in the affidavit, independent of those respecting defendant's liability, concerning the existence of the ground entitling the plaintiff to the writ, did not exist, the remedy was not by motion to dismiss the writ as improvidently granted, but, the one provided by statute, a traverse of the affidavit for the writ and a trial of the issues thus formed. Secs. 2745, 2746, Stats. 1898. Such sections expressly leave all questions relative to the liability of defendants to plaintiffs to be determined upon the trial of the action, and require the question of whether grounds otherwise existed for the execution of the writ, if disputed, to be determined in the manner indicated."
We have examined all of the cases cited by the respondents and we find none which support their contention that a judgment in general terms may be construed as a judgmentin rem.
In the present case the judgment entered on behalf of the plaintiff recites only that it appears from the pleadings and affidavits on file that the defendants own property in Wisconsin. *145 There is no description in the judgment, either direct or by reference to the description contained in the affidavit of plaintiff's attorney. The adjudication itself is a simple judgment for money damages:
"It is adjudged that the plaintiff recover against the defendants, Emil Schultz and Nettie Schultz, also known as Jeretta E. Schultz, the sum of fifteen hundred ($1,500) dollars, principal, with interest thereon since date of execution in the amount of three hundred ninety-six and 46/100ths ($396.46) dollars, and two hundred twenty-five ($225) dollars, attorneys fees, as provided by said note, or a total of two thousand one hundred twenty-one and 46/100ths ($2,121.46) dollars, together with the costs and disbursements taxed at fifty-eight and 25/100 dollars, making a total judgment of two thousand one hundred seventy-nine and 71/100 dollars.
"That the plaintiff, Betty Schultz, resides at 1820 Stevens avenue, Minneapolis, Minnesota, and that the defendants, Emil Schultz and Nettie Schultz, also known as Jeretta E. Schultz, reside at 3649 Oceanview, San Diego California."
Corpus Juris Secundum states the rule to be:
"Where a judgment affects the title to property, real or personal, the property must be described specifically and with certainty to enable execution of the court's mandate; an impossible, wrong, or uncertain description, or the absence of a description, renders the judgment erroneous or void." 49 C. J. S., Judgments, p. 203, sec. 80.
Upon reason it would appear that the judgment should clearly indicate upon its face whether it is in personam orin rem. There is nothing in the adjudication of the present judgment to indicate that it refers to property. Upon valid judgments the clerk of court is by statute authorized to issue execution against any property belonging to the defendant without regard to whether it was acquired by the defendant before or after the entry of judgment. To hold this judgment valid as to specific property not designated in the judgment and invalid as to all other property which *146 the defendants might later acquire would inject an element of uncertainty into all judgments which would almost require separate proceedings to determine the property against which execution might be levied in all cases. We have concluded for these reasons that the judgment is invalid.
In connection with this case we think it well to mention the rule stated by the United States supreme court in Penningtonv. Fourth Nat. Bank (1917),
"The only essentials to the exercise of the state's power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard."
It would appear better practice to describe the property affected by the action in the complaint so that at the time of service the defendant is thereby given notice that his interest in such property is sought to be impressed.
By the Court. — Order reversed and cause remanded with instructions to vacate and set aside the judgment.