Chase v. Ostrom

Cassoday, J. This is an action brought by tbe appellant, as assignee of a judgment creditor, against tbe sheriff of Green Lake county, and bis sureties upon his official bond, for failing to levy an execution issued on said judgment, on personal property in the bands of tbe judgment debtor, and which was taken by one of bis deputies on a junior execution received by tbe deputy after tbe other execution was received by tbe sheriff. The judgment under which tbe appellant [641] claims was rendered in the county court of Milwaukee county, upon process served on the defendant therein in Green Lake county, where he resided, and without any appearance on the part of the defendant. This cause was tried by the court, and the circuit judge held, as a conclusion of law, that the county court of Milwaukee county had no jurisdiction beyond the territorial limits of Milwaukee county, and hence that the judgment so rendered by that court upon service made in Green Lake county was void for want of jurisdiction. We have very recently held the contrary doctrine, and the soundness of that decision is not questioned by counsel. Geise v. Greene, 49 Wis., 334. The only objection made to the execution is, that when it was sent with the transcript to the clerk of the circuit court of Green Lake county, with direction to file the transcript and have the judgment-docketed, the dates in the execution were left blank, and that they were filled in by the clerk, in pursuance of the directions to him from the attorney. We are of the opinion that the clerk may be properly regarded, under the findings of the court, as the agent of the plaintiff in the execution, or his attorney, for the purpose of filling in the blanks as directed. These things being done, the execution was in substantial compliance with the law in force at the time. See section 2969, R. S.; Kentzler v. Railway Co., 47 Wis., 641. As to whether the sheriff was negligent in not making levy, the finding is too indefinite to determine. We therefore hold, (1) that the county court for Milwaukee county may obtain jurisdiction in a personal action over a defendant not residing therein, and upon process served in another county, without the voluntary appearance of the defendant; (2) that the clerk of a circuit court, to whom a transcript of a judgment rendered and docketed in another county has been sent by the party or attorney obtaining such judgment, together with an execution thereon duly signed and filled out, except the dates of filing such transcript and docketing such [642] judgment, by him, and with, directions to file the transcript, docket the judgment, and then fill the blanks in the execution and deliver the same to the sheriff, may act as the clerk or agent of the party or attorney giving such directions in so doing; and if he does so act, the execution will be deemed issued as of the date when it is delivered to the sheriff. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.