Thomas v. Richards

Cassoday, J. The substance of the contract between the plaintiffs and Lomas, thus stated, made the shipment under it a conditional sale, within the provisions of sec. 2317, R. S. It is stated in the charge of the court to the jury, [676] that “ the proof shows that this contract was not filed as required by this section.” We find no exception to this statement of fact, and it must be treated as a verity in the case. Besides, this statement is not contradicted by the manifest inadvertence that it was not filed “ prior to February 26, 1886,” only three days after its date and before any shipment had been made, and hence before there was any occasion to file it. Had there been any evidence contrary to this statement in the charge, the court’s attention should have been called to it at the time. The court submitted to the jury the question, in effect, whether, at the time of levying the attachment, the defendant, or the Milwaukee Harvester Company, or its agent, knew of, or had reasonable cause to believe in, the existence of such contract, or that Lomas was not at the time the owner of such machines. This was not error. Rawson Mfg. Co. v. Richards, ante, p. 643. . Exception is taken because the court instructed the jury, in effect, that to charge the sheriff with notice under that section, they must find that he knew, either that such machines had been shipped under the contract and not paid for, or that he had reasonable cause to so believe. Assuming this to have been error in the abstract, still the only notice disclosed in the evidence is, in effect, that in executing the attachment, a copy of the contract was found with other papers of Lomas in the safe. Such a discovery made at such a time, should not, in our judgment, defeat such attachment; and hence the error, if any, was immaterial. Besides, we are inclined to think that such notice, to be effectual, must be brought home to the party in interest, and not merely to the sheriff, who is the agency of the law and a mere nominal party. The return of the sheriff, as to the service of the summons and complaint as stated, seems to have been in compliance with subd. 4, sec. 2636, R. S., and hence sufficient to give the court jurisdiction to [677] enter judgment on default, as it did, against Lomas. Healey v. Butler, 66 Wis. 9. It appears from the return indorsed upon the writ of at1 tachment, that the machinery in question was attached on the day the summons and complaint were served; that six1teen days thereafter other property described, of Lomasj was also attached, by the same writ, and all held subject to the order of the court. The sheriff further returned thereon, that, after due and diligent search, he was unable to find the defendant' therein — Lomas — within Grant county, or within the state of "Wisconsin. No objection is made to the sufficiency of the affidavit, undertaking, inventory, or ap-praisement. The attachment papers were all filed with the clerk of the court, September 13, 1886, and within twenty days from the receipt of them by the sheriff, as required by sec. 2734, E. S. The court certainly acquired jurisdiction over the machinery in question by virtue of the seizure oh the attachment. But it is urged that the attachment became a nullity by reason of failure to leave copies of the writ, affidavit, undertaking, and inventory with Eogers, as provided in sec. 2736, E. S. The reason given in the return for leaving copies of the summons and complaint with Eogers, were, that he was then a member of Lomas’ family, of suitable age and proper4 discretion. On the motion for a new trial, based in part upon such alleged defective service, it appeared, in effect, that Eogers was the keeper of a hotel at Eennimore during the year 1886; that in August of that year, and for several months immediately prior thereto, Lomas was a guest and boarder of his at said hotel; that during that time Lomas was a single man having no other family; that in August, 1886, Lomas’ absconded to parts unknown. Upon these facts, the failure of the sheriff to leave such copies of the attachment papers with Rogers, the same as he had of the summons and complaint eighteen days before, seems to have been excusable. The only pur [678] pose of leaving such copies is to furnish information, of what has been done, to the defendant in the attachment. The same section provides that “in case of a non-resident or a foreign corporation, the sheriff shall serve such copies on any agent of such defendant in the county, if any be known to him” We are not aware of any statute purporting to nullify such attachment by reason of such failure to leave copies. A statutory condition subsequent to the acquisition of jurisdiction maybe dispensed with'or waived; especially where such statute is for the benefit of the party waiving the same, and no public right or policy is thereby invaded. Winner v. Hoyt, 66 Wis. 227. Certainly, the defendant in attachment may waive such service by absconding from the county and state. There seem to be no other questions presented, requiring attention. By the Court.— The judgment of the circuit court is affirmed.