68 Wis. 278 | Wis. | 1887
Tlio issues upon the answer of the garnishee Franlt M. Uoyt were fully tried by the court without a jury, and findings were made and judgment entered upon the merits in favor of the garnishee. Upon the appeal from that judgment, it was held by this court, in effect, that as the several chattel mortgages and assignments to the several creditors, transferring the entire property of the insolvent firm of E. S. Hoyt & Co., were made in pursuance of the same agreement, at substantially the same time, and all relating to the same subject matter, for the same common purpose of having one of such mortgagees and assignees, for himself and as agent and trustee for the others, take immediate possession and convert such property into money and divide the same pro rata among such favored creditors, they must be construed together as one instrument, and, when so construed, they constituted in legal effect a general assignment, with preferences for the benefit of such favored creditors, and hence, under the statutes, were void as to other creditors, including the plaintiff. 66 Wis. 227. A specific judgment was not directed upon that reversal, because certain computations were first necessary, which were left for the trial court. Accordingly, the judgment of the trial court was reversed, and the cause was “remanded for further proceedings according to law.” Page 251. The words “according to law” manifestly meant according to the opinion of the court filed upon that appeal; for, without regard to the merit or demerit of that opinion, it necessarily became the law of the case. This being so, it would seem to follow that, upon the cause being remanded, the plaintiff was entitled to judgment against the garnishee in accordance with the determinations of this court in the opinion filed.
But, notwithstanding these things, it is now urged that such trial and judgment upon the merits in the county
The argument at the bar was devoted largely to the question whether this section makes such service upon the defendant in the principal action jurisdictional. Prior to the enactment requiring such service to be made upon the defendant in the principal action, embraced in the above statute, there would seem to have been no doubt but what the payment of money or delivery of property in good faith by a garnishee, in pursuance of a valid judgment of gar
But sec. 2756, R. S., does not require such service in garnishment to be made upon the defendant in the principal action in all cases. On the contrary, it expressly provides, in effect, that such service need not be made in such garnishment whenever the service of the summons in the principal action is made without the state or by publication. In such actions against nonresident defendants so served, further service is dispensed with, and it is left as before the enactment. Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has
Sec. 2756 provides, in effect, that when the defendant has appeared in the principal action by an attorney, then such
These several provisions of the section indicate pretty clearly that such service of garnishment upon the defendant in the principal action was not required for the purpose of securing a new and independent jurisdiction over such defendant personally or the property and credit sought to be thereby reached; for, if such service was designed as a condition precedent to the exercise of such jurisdiction, then it could not be dispensed with, for the court could not proceed without it. Maxw. Stat. 34Y. The garnishee summons is not required to be addressed to the defendant in the principal action, but only to the garnishee. Sec. 2Y54, B. S. The form given is entitled in the cause and designates the defendant in the principal action and also the garnishee, and closes with this: “ Of which the said defendant will also take notice; ”— adding the name of the plaintiff’s attorney and his address. Ibid. Is such requisite service upon the defendant in the action anything more than a mere notice in a proceeding in rem, where the
As observed, the service upon the garnishee gives jurisdiction of the res. The service upon the defendant may be “ before” the service upon the garnishee; but a failure to make it before does not preclude subsequent service upon the garnishee, as ten days are expressly given thereafter within which such service may be made upon the defendant. Such service upon the garnishee is only to “ become void and of no effect from the beginning ” when such service is not made upon the defendant “ within ten days after service ” upon the garnishee, and when neither of the three other conditions in which such service is dispensed with exists. The manifest purpose of such condition subsequent was not to give jurisdiction but to secure good faith and diligence in the giving of such notice, when it could be given within ten days after servicempon the garnishee and thus obtain the objects of the enactment as stated. The condition affixed to the failure to serve the garnishee papers on the defendant in the case required, is in the nature of a penalty or forfeiture in consequence of such omission. It is like the condition that “ the proceeding against the garnishee shall be dismissed,” unless the plaintiff files “his complaint duly verified ” in the clerk’s office “ within, ten.
Here it appears that E. 8. Hoyt was aware of the garnishee proceedings. He was the uncle and in the employ of the garnishee during much of the litigation. The garnish ee, who is an able lawyer, instigated and manipulated the assignment, not in bad faith, but as we think under a mistaken view of the law, and acted as the principal counselor of his uncle both before and after the assignment, and assumed to act as attorney for his uncle and Kinney in withdrawing the traverse of the attachment and allowing judgment by default. Besides, the record fails to show any want of good faith or diligence in the attempt to serve the garnishee papers upon E. 8. Hoyf. On the contrary, we think, the affidavit of the deputy sheriff, which is not overthrown, shows ordinary diligence to find E. 8. Hoyt, and that he failed to find him or definitely locate him where he could be found within the state to make such service. It would be an unreasonable construction of the statute to require the sheriff or his deputies to make continuous search during every one of the ten days given for such service. A sheriff, especially in a county like Milwaukee, is liable to have numerous papers in his hands for service at the same time, as well as other duties. If he is bound to retain each paper in his hands until the last day for making return, and
As this was a mere matter of notice after jurisdiction of the res had been acquired, there is another reason why E. 8.
By the Court.— Both of the orders of the county court appealed from in this action are affirmed, and the cause is remanded for further proceedings according to law.