Barth v. Burnham

Marshall, J. The first error assigned is that the finding of fact, that the action of Burnham v. Koetting, in which the writ of attachment w’as issued, was commenced August 5, 1893, is contrary to the evidence; that the finding should have been that the action was commenced August 11,1893, and after the levy was made on which the title of plaintiff is based. The only evidence of when the Bwrnham action was commenced is the circumstance that the writ of attachment was issued August 5, 1893, the finding in that action that it was commenced August 11, 1893, the return of the sheriff showing that the service of the summons and complaint was made on that date, and the date of the verification of the complaint, August 9,1893. Sec. 2730, Stats. 1898, provides that, “ The writ of attachment shall be issued on the request of the plaintiff, by the clerk of the court, either at the time of the issuing of the summons in the action or at any time thereafter before final judgment.” Sec. 2591. provides that, “ The clerks of the several courts of record may deliver to any attorney of their respective courts blank — 552 — process and seals, to be used in sealing process, under such-rules as may be prescribed by the supreme, circuit, county or other courts of record.” Rule YI of the Circuit Court Rules extends the benefit of that statute to all process,, whether mesne, intermediate, interlocutory, or final, which may be requisite for the carrying on of any action in a court of record or the enforcement of its order or judgment. Sec. 2630 provides that the summons may be issued by the party or attorney in the action. Considering these several statutes together, it is plain that the word “ issuing ” as used in sec. 2130 refers to the actual delivery of the writ of attachment or summons to the sheriff to be executed. That is. consistent with Bell v. Olmsted, 18 Wis. 69, and Cummings v. Tabor, 61 Wis. 185. When the first case was decided the language of the statute was, “ The writ of attachment may issue at the time of the commencement of the action or at any time thereafter before final judgment,” yet it was held that the actual commencement of the action, within the meaning of sec. 2629, which provides that an action shall be commenced by the service of a summons, was not intended by the language of sec. 2730, though that was the literal meaning of the term and what is ordinarily understood by it, except in regard to the running of the statute of limitations which is governed by a special statute. As reasoned by the court in the Bell Case, if service of the summons were required to precede the service of a writ of attachment, the remedy would be useless. So a conclusion was reached that a delivery of the summons to the officer, for the purpose of having it served upon the adverse party, is the commencement of the action, intended by the language-regarding the time when the writ of attachment may issue. Thereafter the statute was changed by substituting the term “issuing of the summons in the action” for commencement of the action.” Now, clearly, the issuance of the writ and of the summons may be simultaneous- acts. The word. — 553 — “ issuing,” as used in the section, refers to the mere delivery of the process to the officer to he executed. True, the statute says the writ may be issued by the clerk on request, but as the attorney may obtain blank signed and sealed process, to be filled up and used as occasion may require, the writ really issues in contemplation of the statute (sec. 2730) when it is delivered to the officer for execution. Give to the statute any other interpretation and the issuance of the writ and that of the summons at the same time will be impracticable. The finding in the Burnham case that the action was, commenced August 11, therefore, does not necessarily mean that the summons was issued on that date. That term refers properly to the time when the summons was issued and also when it was served. In the particular case, as the-date of the service of the summons and the finding of the court as to when the action was commenced correspond, yet-the writ of attachment was issued at an earlier day, it is-considered that, in the absence of some evidence to the contrary, the presumption is that the issuance of the summons-was either simultaneous with that of the writ, or that the former antedated the latter, and that the finding as'regards; when the action was commenced refers to the jurisdiction of the court requisite to the rendition of judgment under sec. 2629. Ye have not overlooked the fact that the complaint in the Burnham case was verified August 9, 1893, and that according to the sheriff’s return the summons and complaint were served together, and that it was said in Cummings v. Tabor, supra, on the facts of that case, that the service of a summons and complaint attached together as one paper-raised a presumption that the summons was issued at the-date of the verification of the complaint. That will not-hold good as a universal rule, for, obviously, a complaint may be verified before or after the issuance of the summons. The mere date of the verification of the complaint, alone, is — 554 — of very little significance as proof of when the action was commenced. If a summons and complaint be joined together and so served, there may be a presumption that they were delivered :to the officer in that condition. In the absence of evidence to the contrary the inference would be that the issuance of the summons did not antedate the date of the verification. But the circumstance that a writ of attachment is issued in such an action at an earlier date would raise an inference that the issuance of the writ did not antedate that of the summons. The two inferences would conflict and the court would be required to determine the correct inference. On the whole situation of this case we cannot say ■that the finding of the trial court, that the Burnham, action was commenced August 5, 1893, that is, that the summons was issued on that day, is wrong. There is at least no clear preponderance of evidence against it. The finding of the court in ithe Bwrnham case, which counsel for appellant refers to with confidence as conclusive of the question, pretty clearly refers, as before indicated, to the actual service of the summons and not to the issuance thereof. The next contention is that the affidavit for the writ of attachment does not comply with the statute authorizing such a remedy in. a tort action, in that it does not show the requisite ground therefor. Sec. 2731, Stats. 1898, governing the-subject, says the writ may issue if the affidavit state, not show, that “ the residence of the defendant, or one of the defendants, is unknown and cannot with reasonable diligence be ascertained.” The affidavit in question complies literally wfith that requirement. True, it contains other statements to the effect that at a time prior to the issuance of the writ the defendant was a resident of Milwaukee, which might be true and it be also true that his residence at the date of the affidavit was neither known nor could with reasonable diligence be ascertained. The fact is that the affidavit, in the very language of the statute, contained — 555 — the statement required as a condition of the issuance of the writ. It is further contended, in effect, under two heads, that the positive statement, regarding the residence of Koetting being unknown and that it could not be ascertained by reasonable diligence, referred to his mere absence from the city, or that it was false; and in either case that the attachment is not valid. The answer to the first proposition is that there is no necessary connection between the clause in the affidavit regarding want of knowledge or means of knowledge of Koetting’s residence and the statement preceding ; and as the former complies literally with the statutory requisite to the writ, the right thereto was absolute whether the affidavit were true or false. Davidson v. Hackett, 49 Wis. 186; Hubbard v. Haley, 96 Wis. 578. The answer to the second proposition is that the right to •challenge the truth of the allegations of the affidavit is given by statute to the defendant or his assignee for the benefit of creditors, to be exercised in the action. It cannot be attacked collaterally, if good on its face, except for fraud or collusion (Rice v. Wolff, 65 Wis. 1); and the evidence is not clear that the court was wrong on the question of whether Burnham wilfully swore falsely for the purpose of securing a writ of attachment, and gaining a preference over other claimants against Koetting. Doubtless, mere absence from the state did not constitute Koetting a nonresident within the meaning of the attachment statute, if he in fact had a dwelling place within the state, whether domiciled here or not, where service could have been made so as to give the court jurisdiction to render a personal judgment against him. The mere fact that he had such a residence some time before the writ was issued does not conclusively establish that it continued till August 5, 1893, or that Bwrnham knew the facts or could, by reasonable diligence, have ascertained them. Neither does the mere — 556 — fact that tbe officer made a substituted service of tbe summons some days after tbe writ was issued conclusively destroy tbe allegations of tbe affidavit. If they are untrue, so as to render Burnham guilty of sucb fraud as would, avoid tbe attachment, be was guilty of perjury. The evidence is not such as to enable us to reach that conclusion; against tbe finding of the trial court. The foregoing covers all the questions presented that, appear to be material to the appeal. By the Court — Judgment affirmed.