| Wis. | May 21, 1901
Lead Opinion
The reason given by the judge of the superior court for denying this motion was that he had no jurisdiction to decide the conflict of evidence apparently arising from
But the grounds of the action taken are immaterial, in view of the conclusion at which we have arrived. The statute (Stats. 1898, sec. 2756) with reference to garnishment in the circuit court provides:
“ The garnishee summons and annexed affidavit shall be served on each of the several garnishees named in the manner provided in sections 2636 and 2637 for service of a summons in an action; and, except where service of the summons in the action is made without the state or by publication, also on the defendant to the action, in like manner, either before, or within ten days after, service on a garnishee. When the defendant shall have appeared in the action by an attorney such service may be made upon such attorney or upon the defendant. Unless the garnishee summons be so served on the defendant or his attorney or the proof of service on the garnishee show 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.”
The garnishee summons in this case was not served upon either the principal defendant or his attorney within ten days after the service upon the garnishees, nor did the proof of service upon the garnishees which was filed in the circuit court on November 1, 1897, show that after due diligence such service could not be made within the state. Prior to the motion to amend the return, the garnishees paid over the moneys owing to the principal defendants. Upon this state of facts there seems no doubt that the last clause of the statute above quoted became effective, and the service on the garnishee became “ void and of no effect from
The process of garnishment is entirely statutory. It is a harsh and extreme remedy, out of the course of the common law, and may be, and properly is, burdened with conditions in the discretion of the legislature. Globe M. Co. v. Boynton, supra; Morawetz v. Sun Ins. Office, 96 Wis. 175" court="Wis." date_filed="1897-04-30" href="https://app.midpage.ai/document/morawetz-v-sun-insurance-office-8185538?utm_source=webapp" opinion_id="8185538">96 Wis. 175, 178. With that branch of the government rests the power and authority to impose any such conditions, and, whether wise or unwise, they should be enforced by courts. It is not difficult, however, to discover a purpose to be accomplished by the provision in question which would not be satisfied by an amendment now. If in fact the principal defendant be not served within ten days, and service be not prevented by inability to find him within the state, then the garnishee is in a predicament, upon the plaintiff’s theory. If he refuses to pay to the principal defendant the amount in his hands, he may be subjected to the costs and expense of a suit in which
Hence we conclude that the attempted service upon the garnishees in this action had, long prior to November, 1900, become void and of no effect from the beginning. It cannot now be revived and validated so as to charge these garnishees with liability again for the money which they have already paid over to the principal defendants. The court’s refusal to amend affects no rights of the appellant injuriously, and should not be disturbed.
By the Court.— Order appealed from is affirmed.
Concurrence Opinion
I concur in the decision in this case solely because, in the interim between the service on the garnishees and the motion for leave to amend the officer’s return, such garnishees ceased to be debtors of defendants in the main action. It is elementary that an officer should be allowed to correct a mistake in his return as of course, and even without notice, when it will not do injustice to litigants or third parties, but not otherwise. The idea advanced by my brethren, that the return of service on a garnishee summons is an exception to that rule, in my judgment, Avould have been abandoned before it found place in
In view of the foregoing, sec. 2756, Stats. 1898, should not be held by judicial construction,to take away the right of amendment as regards the officer’s return if that can be reasonably avoided. Rather, the statute should be construed in harmony with the common-law rignt if it can be, reasonably. Elementary principles demand that. The language of the statute is, ‘ The garnishee summons shall be served on the defendant in the main action within ten days after service is made on the garnishee except where the service is made without the state or by publication: provided that, if'the defendant shall have appeared in the action by attorney, service may be made on him or his attorney; ’ and, “ Unless the garnishee summons be so served on the defendant or his attorney or the proof of service on the garnishee
It does not require argument to demonstrate that such language makes service on the garnishee the jurisdictional act, and failure to make proper return, showing service upon the defendant in the main action within ten days after the former service, or that the latter service cannot be made in this state, operates to terminate jurisdiction. Upon failing to do that, the statute says, the service upon the garnishee shall become void. The meaning of the statute is not that the return shall be made in any particular time. My brethren do not claim that, yet say that the officer is absolutely bound by his return when once made, regardless of whether a change thereof will prejudice litigants unjustly or not. That seems a strange doctrine, out of harmony with the liberal construction that should be given to remedial legislation, and out of harmony with the strict construction that should be applied, where construction is permissible, limiting the effect of an act which interferes with common-law rights; it takes away the common-law right to amend, and does that by judicial construction. In saying this we assume that, taking the most favorable view that reason will permit in favor of the position of my brethren, the statute is open to construction. Full effect would be given to it by holding that it does not mean that an officer is absolutely bound under all circumstances by his return as first made; that it is open to amendment in accordance with the truth the same as any other return, and that, unless it shows, either when originally made or as corrected, the jurisdictional facts mentioned, the service upon the garnishee shall “ become void and of no effect from the beginning.” The service of any summons becomes void and of no effect from the beginning if proper proof thereof be not made or it is waived, but not necessarily because it is not made correctly
We have so far considered the question of whether an officer’s return on a garnishee summons is open to amendment as if it were wholly governed by common-law principles and the construction to be given to sec. 2756, Stats. 1898, without reference to any other section of the statutes. But, in my judgment, the right of amendment is expressly given by other sections of the statutes which my brethren have wholly failed to appreciate. Sec. 2830 provides that the court may, in furtherance of justice and upon such terms as may be just, permit an amendment of “ any process or proceeding by correcting a mistake in any respect.” That has been held to cover the subject of amending officers’ returns, and in that respect a mere declaration of the common law. Sec. 2766 provides that a garnishee proceeding shall be deemed an action with the same right of amendment as exists in other actions. It seems to me very plain that secs. 2756 and 2766 should be read together; and when so read, that it is clear beyond reasonable controversy that it was not intended by the language of the former to conclude an officer, or party for whom he acts, by his return as first made, so that he cannot afterwards change it under any circumstances in order to remedy a mistake therein and make.it conform to the truth.