87 Wis. 373 | Wis. | 1894
This is a writ of certiorari from the circuit court of Milwaukee county to George P. Harrington, Esq., a justice of the peace of said county, who rendered the judgment in favor of the plaintiff in the case before him of H. Cordes against Jacob Weber. The circuit court made an order overruling the motion of the appellant to quash the writ, and rendered judgment reversing the judgment of the justice, and this appeal is from said order and judgment.
The proceedings before the said justice are substantially as follows: The summons in the case of H. Cordes against Jacob Weber was issued May 15, 1893, on a demand of about $87, returnable May 29, 1893. The constable having the summons returned it with the indorsement that the defendant could not be found within the county, and on the return day the case was called, and the defendant did not appear, whereupon the justice caused the following notice to be published in the Milwaukee Daily News on May 31, 1893: “Milwaukee County, City of Milwaukee — ss.: In Justice Court. To Jacob Weber: Tou are are hereby notified that a warrant of attachment has been issued against you and your property attached to satisfy the demand of II. Cordes, amounting to $87. Now, unless you shall appear
At the time the summons in the action was issued, there was also a garnishee summons issued against the Northwestern Malleable Iron Company, and duly served on said company on May 15, 1893, and the constable again returned that the defendant could not be found. At the time of the hearing on May 29,1893, the plaintiff appeared, and the garnishee company appeared and answered by its agent that it had in its hands the sum of $33.25 belonging to the defendant, and the plaintiff was satisfied with the answer, and the defendant did not appear; and the garnishee was ordered to hold said money until the further order of the court, and the garnishee proceedings were then adjourned until June 19, 1893. At that time the defendant appeared in person and by attorney before the justice, and claimed that said .money in the hands of the garnishee was exempt, as his wages, for the support of his wife and children; but the justice ordered the garnishee to pay the money into court within ten days.
The learned counsel of the appellant contends that the defendant’s appearance to the garnishee proceeding was an appearance in the action.
First, did the defendant appear to those proceedings? The garnishee was summoned to appear and answer on May 29,1893, and did so appear and answer, and the plaintiff was satisfied with its answer; and it was ordered to hold the money until the further order of the court. And this ended the matter, so far as the garnishee was concerned. The defendant did not appear at that time, and therefore he did not appear to the garnishee proceedings. [Nearly a month afterwards, on the 19th day of June, when he heard that the court was about to order the money the garnishee owed to him for his labor paid over to the use of the plaintiff, he appeared before the justice and claimed his exemption of that money as his wages under the statute. This was a privilege that he was compelled to exercise. This was an appearance for a special purpose, and that purpose had nothing to do with the matters of the main action. It was entirely separate and distinct from, and independent of,
But, secondly/, if this special appearance to claim his exemption was a general appearance to the garnishee proceeding, was that an appearance in the action? The service of the garnishee summons was the commencement of an action against the garnishee. R. S. sec. 3720; Garland v. McKittrick, 52 Wis. 261. It is a new and another action, and distinct from the main action. An appearance in one action cannot, in the nature of things, be an appearance in another action. Mr. Justice Taylor, in Beaupre v. Brigham, 79 Wis. 436, said: “Had he [the defendant] formally made himself a party to the garnishee action, still we thinlc he could have objected to the recovery of the plaintiffs against the garnishees, on the ground that no valid judgment had been obtained against him, as the statute makes that an absolute prerequisite to a recovery against the garnishees.” This language is conclusive of this question. The defendant had not been served with process or constructively by the notice published, and had never appeared to the main action. Notwithstanding this, the justice was about to transfer money to the plaintiff which the garnishee owed to him, and he appeared and claimed that it was exempt. This was like a levy of an execution upon the defendant’s property on a judgment void for want of jurisdiction of him by service of process or by his appearance, and he claims the property as exempt. No one would contend that such a claim would be an appearance in the action and make the judgment valid. May the defendant not object, with impunity, to having his property taken away from him on a void judgment? But this is more than sufficient to show that the judgment was rendered by the justice without jurisdiction, and that the circuit court did not err in reversing it.
By the Oourt.— The judgment of the circuit court is affirmed.