State Ex Rel. Fontaine v. Sullivan

Wickhem, J. Plaintiff was a physician residing in Forest county. Defendant is also a resident of Forest county and resides with members of his family upon whom service of a summons could be made if defendant was not found within the county. Plaintiff sued in justice court of Brown county and garnisheed the Railroad Company to recover for professional services rendered to defendant. The garnishee Railroad Company maintains railroad stations and station agents both in Forest and Brown counties. The summons was not served on the principal defendant and the officer’s return thereon is that defendant could not be found in Brown county and has no place of abode therein. The garnishee summons was served upon the station agent of the Railroad Company located within Brown county. The garnishee’s answer admitted wages of $74.11 to be due to defendant. The return on garnishee summons recited that defendant could not, after diligent search and inquiry, be found within the jurisdiction of the justice. Upon 'the return day of the summons and the garnishee summons the principal defendant appeared specially by attorney in the principal action and objected to the jurisdiction of the court because defendant is not a resident of Brown county but resides in Forest county. On the return day of the summons, after waiting one hour for defendant to appear personally, the *443 justice entered an order in the principal action that plaintiff publish in the “Green Bay Press-Gazette,” a newspaper published in Brown county, a notice to defendant that a garnishee summons had been issued and served upon him and that if he did not appear and defend the action on May 1st at 10 o’clock a. m. judgment would be rendered against him and his property taken to satisfy the debt. The case was continued to the hour stated as was the garnishee action. On April 21st an affidavit of publication of the order was filed stating that a notice had been published as provided in said order for one day on April 13th. The docket of the justice recites that on May 1st defendant did not appear and after waiting one hour proof was taken and judgment for $104.50 and costs was rendered against defendant. The docket in the garnishment case recites nonappearance of defendant therein, the waiting of one hour and entry of judgment in the principal action and judgment was entered m the garnishee action that plaintiff recover of garnishee $74.11 “now presently due and which is to be paid and delivered as by me ordered.” Relator contends that the justice of the peace of Brown county acquired no jurisdiction of his person or of the subject matter in garnishment. This calls for consideration of several applicable sections of the statutes. Sec. 300.01, Stats., provides : “The jurisdiction of all justices of the peace shall be coextensive with the limits of the county in which they are elected, and no other or greater, except when otherwise specially provided by law.” Sec. 304.24, Stats., provides: “The officer shall serve such summons on the garnishee personally, and return the same, with the affidavit, to the justice at the same time that he shall make return of the summons or warrant and state in his return the day service was made on the garnishee. A copy of such summons shall be served on the defendant within the time service thereof is required to be made on the garnishee. If the defendant cannot *444 be found or is not a resident of the state then service may be made upon him by publication as provided in sections 304.12 and 304.14, with like effect. ...” Sec. 301.09, Stats., after specifying the officers of municipal or other corporations upon whom a summons may be served, continues: “. . . except that in an action against a railroad or express corporation, in addition to the officers above referred to, it may be served upon any agent of the corporation who has charge of an express office or a depot or station on the line of the railroad owned or occupied by the defendant; and upon perfecting such service and a legal return thereof being made it shall be held to have the same effect as a personal service upon a natural person, and like proceedings may be had in such action as in cases against such persons.” Relator claims that under the provisions of sec. 300.01, Stats., the jurisdiction of the justice of the peace of Brown county does not extend beyond the limits of the county and that consequently there was no jurisdiction of defendant in the principal action. This overlooks the specific exception in sec. 300.01 “when otherwise specially provided by law.” Sec. 304.24 does “otherwise” specifically provide that in garnishment actions where jurisdiction has been had of the garnishee defendant and the principal defendant cannot be found in the county service may be had in the principal action by publication. Jurisdiction of the garnishee defendant existed because under the terms of sec. 301.09 service was permitted in the case of railroad corporations upon station agents or depot agents of the railroad throughout the state and the same section provides that such service shall have “the same effect as a personal service upon a natural person.” It thus appears clearly, (1) that the justice had jurisdiction of the garnishee defendant; (2) that under sec. 304.24 he could acquire jurisdiction over the principal defendant by publication. Having completed the publication before assuming to enter judgment *445 in the garnishment action there is no jurisdictional defect m these proceedings. The case of De Laval Separator Co. v. Hofberger, 161 Wis. 344, 154 N. W. 387, is distinguishable from the present case in that there the garnishee was a natural person residing out of the reach of the garnishee summons issued by the justice. State ex rel. Chicago & N. W. R. Co. v. Pauli, 126 Wis. 65, 104 N. W. 1007, is a case where a garnishee summons in justice court was not served on defendant. He could not be found and never appeared. The justice there assumed to determine the liability of the garnishee on the adjourned date before completing service by publication on defendant. If was held that the justice had no jurisdiction to enter judgment against the garnishee. In the Pauli Case the fact that no service whatever was had upon the principal defendant is the distinguishing feature. Furthermore, the implications in the case are in line with our determination here because it is strongly inferred in the opinion that had service by publication been made on defendant before the garnishee’s liability was determined, the justice would have been within his jurisdiction. We have examined this case with particular care because the statutes as they stand are open to the possibility of abuse of process in cases where a railroad company is the garnishee, or. where a corporation may have numerous agents in the state upon whom a garnishee summons may be served with the effect of personal service. There is, however, no claim that malicious abuse of process is involved in this case, and while the possibility exists, and may have been overlooked in the course of enacting the sections involved, the statutes have stood in their present form for many years without any complaint of abuse. Under these circumstances we will not consider to what extent the deliberate and malicious use of the jurisdiction specified by the statutes can be controlled and restrained by principles relating to malicious abuse of process. The question here is one of jurisdiction, and the statutory language is *446 so clear that we cannot help the situation except by a distorted construction amounting to judicial legislation. It is the evident statutory purpose that claims of a principal debtor against another may be reached by garnishment in justice court in any county of the state where personal service, or what amounts to it, may be had on such other, and that service upon the principal debtor may be had by publication if he is not found there. The possibility suggested in this paragraph can be dealt with only by the legislature. By the Court. — Judgment affirmed. Rector, J., took no part.