State ex rel. Chicago & Northwestern Railway Co. v. Pauli, 126 Wis. 65

126 Wis. 65 | Wis. | 1905

Cassoday, O. J.

Pursuant to the command of the statute the garnishee summons requiring the railway company “to. answer touching” its “liability” to the principal debtor, Max Numberg, “as garnishee,” was made returnable “on the return day of such summons” in the principal action of PoajIÍ-against Numberg. Sec. 3716, Stats. 1898. The statute also required the officer serving the garnishee summons to “return the same, with the affidavit, to the justice at the same time” that he made “return of the summons” in the principal action, and to “state in his return the day service was made on the garnishee.” The statute, moreover, required “a copy of such” garnishee summons to be served on the principal “defendant within the time service thereof” was “required to be made on the garnishee.” Sec. 3718, Stats. 1898. The same section provided that, if the principal defendant could not be found, “then service” might “be made upon him by publication, as provided in sections 3712, 3713, with like effect.3'’ The proceedings by garnishment are special and in derogation of the common law, and must be strictly pursued in order to confer jurisdiction. Steen v. Norton, 45 Wis. 412, 417; Edler v. Hasche, 67 Wis. 653, 658, 659, 31 N. W. 57, 59. In this last case it was expressly held that:

“In justice’s court, unless the garnishee is summoned to appear on the return day of the summons, . . . the justice acquires no jurisdiction in the garnishment proceedings, even though the garnishee voluntarily, appears therein.” To the same effect: McCormick H. M. Co. v. James, 84 Wis. 600, 54 N. W. 1088; State ex rel. Weber v. Cordes, 87 Wis. 373, 58 N. W. 771.

The reason for such ruling is obvious. To hold the railway company as garnishee it was essential for Mr. Pauli, in the manner prescribed by the statutes, to establish not only his claim against Nürnberg, but also his claim that at the time of serving the garnishee process the railway company was indebted to Nürnberg, and that such indebtedness was not exempt from execution. Eastlund v. Armstrong, 117 Wis. 394, 397, 398, 94 N. W. 301. The statute expressly authorized “the defendant in the original action,” Nürnberg, to “appear and defend the proceedings against the garnishee upon the ground that the indebtedness of the garnishee or any property held by him” was “exempt from execution against snob defendant, or for any other reason” was not liable to garnishment, or upon any ground upon which a garnishee might have defended the same; and he might “participate in the trial of any issue between the plaintiff and the garnishee for the protection of his interests.” Sec. 3723, Stats. 1898. The same section gave to the garnishee the option of defending the principal action for the defendant by reason of his nonappearance therein, but provided that such defense should not preclude the principal defendant from the right to a new trial, as prescribed by the statute. Id.; Eastlund v. Armstrong, supra.

In the case at bar there was no actual service upon the principal defendant, Nürnberg, who, according to Ike return of the officer, could not be found in the county. The constructive service by publication was not complete until June 17, 1904, more than three weeks after the justice had assumed to determine the liability of the railway company as such garnishee. ' Nürnberg never appeared in the action, and such determination was prior to any publication. It was made in the absence of the garnishee, who never appeared in the action after having filed its answer, which occurred a week prior to such determination. Under the sections of the Statutes mentioned and the repeated decisions of this court we must hold that such determination of the liability of the railway company, as garnishee, by the justice was without jurisdiction and void.

In pursuance of the stipulation in the record neither party is to have costs in this court, except the appellant is to pay the fees of the clerk of this court.

By the Gourt. — The judgment of the circuit court is affirmed.