Storm v. Adams

56 Wis. 137 | Wis. | 1882

OetoN, J.

The plaintiffs commenced suit against the defendant Carlson, and caused a garnishee summons to be served on A. Adams, having in his hands, as constable, money received by him on several attachments and executions in favor of certain creditors by a sale of the property of Carlson. The plaintiffs sought to obtain jurisdiction of Carlson by publication.

1. It is contended by the learned counsel of the respondent that the judgment of the plaintiffs against Carlson is void for want of jurisdiction of his person. The plaintiffs’ attorney made the affidavit for publication on his information and belief, and it was stated therein, in the exact language of the statute (subd. 2, sec. 2639, R. S.), “ that the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors.” In Hafern v. Davis, 10 Wis., 501, the affidavit failed to state distinctly any of the causes for publication. It failed to state actual nonresidence; and Chief Justice UixoN, in his opinion, says: “ It is defective in not stating that the defendant was a resident of this state, and that he departed therefrom with intent to defraud his creditors or avoid the service of a summons.” For these reasons alone the judgment was held void for want of jurisdiction. That case was brought to this court by appeal, and, of course, could be reversed for mere irregularities; and, it is said in the opinion, “ the affidavit is in other respects irregularr,” and one irregularity was that the affidavit was made by an attorney of the plaintiff, and stated no grounds for his belief, or the sources of his information. But the judgment was not held void for this irregularity, but because the affidavit stated no' statutory ground for the publication. The order of publication recites: “ It appearing to my satisfaction (among other things) that the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors,” etc.; and the judgment recites, also, that “ it appearing by due and sufficient proof, etc., that the summons was duly served by publication,” etc. Section 2641, E. S., makes the order of publication “presumptive proof of the existence of all facts required to exist to authorize the same to be made, and conclusive in all collateral actions or proceedings.” Under these statutes there can be no doubt that in this garnishee proceeding the judgment is valid, and jurisdiction by publication over the defendant was duly and properly obtained.

2. It is contended that Adams, being a public officer, and having money in his hands for which he was accountable to the defendant Carlson, was exempt from garnishee process, under subd. 3, sec. 2769, R. S. Adams being a constable, and having collected and received money by force of an execution against the defendant, his exemption from garnishee process must be urged, if at all, under subd. 2 of that section, which makes the exemption depend upon the fact that the execution or other process is in favor of the defendant. The language of subd. 3 is perhaps broad enough to include a sheriff or other officer having collected" money by execution or other process against the defendant; but to so construe it would bring subdivisions two and three into conflict; and, besides,- subd. 2 is special, and limited in its terms to sheriffs and other officers who have received or collected money by force of an execution or other process, while subd. 3 is general, and embraces all “ public officers ” who have money in their hands for which they are accountable to the defendant, however obtained. Therefore, by a common, as well as the statutory, method of construction, the special and particular provision in subd. 2 must, be held to govern. Mead v. Bagnall, 15 Wis., 156; Schieve v. State, 17 Wis., 253; Woodbury v. Shackleford, 19 Wis., 55.

3. The judgment of the plaintiffs being valid, and the constable, Adams, being liable to garnishment as to the moneys in his hands collected on execution against the defendant, unless held by him by prior or superior right by virtue of the execntions on which the property of the defendant has been sold, the learned counsel of the appellants contends that the judgment against Carlson, in favor of one John Pritzlaff, on which one of said executions was issued, is void for Avant of jurisdiction of the subject matter in the justice Avho rendered it. The sum total of the aocount for goods, Avares, and merchandise is stated in the amended complaint in that case to be $503.66, and the balance, after deducting all payments, setoffs, and counterclaims, is stated in said complaint to be the sum of $287166, and judgment is demanded for that amount. Both the sum total of the account and the balance demanded were above the jurisdiction of the justice, and the judgment is clearly void. Elderkin v. Spurbeck, 2 Pin., 129; McCormick v. Robinson, id., 276; Nimmick v. Mathiesson, 32 Wis., 324; Cooban v. Bryant, 36 Wis., 605; subd. 4, sec. 3572, R. S.

4. It is also contended by the learned counsel of the appellants that the judgment in favor of King c& Co. against Carlson is void by reason of the justice having rendered it prematurely, and Avithout keeping the case open for one hour after the time fixed for appearance on the day to which the case had been adjourned. The case was adjourned to March 4,1881, at three o’clock in the afternoon. At tAvo o’clock the case was called. At three o’clock the plaintiffs appeared, filed proof of publication, and asked leave to amend their complaint. And then the docket recites: “ Whereupon judgment is hereby rendered,” etc. This “ whereupon ” may mean at four o’clock. The judgment was certainly not rendered at three o’clock; for several things were done after that hour,— such as proof of publication, the amendment of the complaint, its verification, and proof of the account by affidavit, which things are recited as having been done. It is sufficient that it does not appear that the case was not held open until four o’clock before the judgment was rendered; and we think on these entries we may well presume that the case was substantially held open without judgment until that hour. Every reasonable intendment should be made in support of a justice’s proceedings. Conkey v. Post, 7 Wis., 131.

There were other objections made, but they do not go to the jurisdiction of the court, and were mere irregularities or matters of evidence.

The result of these conclusions is that the garnishee Adams is accountable to the plaintiffs for the money in his hands collected on the judgment of Prit&laff against Garlson.

By the Gourb.— The judgment of the circuit oourt is reversed, and the cause remanded with direction to render judgment in accordance with this opinion.