Smith, Thorndike & Brown Co. v. Mutual Fire Insurance

Dodge, J. The reason given by the judge of the superior court for denying this motion was that he had no jurisdiction to decide the conflict of evidence apparently arising from [604] the contradictory statements in the deputy sheriff’s two different affidavits. This, of course, is no ground for the action taken. If any conflict of fact needed to be decided in order to allow the sheriff to amend his return to accord with what he declared to be the fact, there was no other forum except the superior court capable of deciding it. But the grounds of the action taken are immaterial, in view of the conclusion at which we have arrived. The statute (Stats. 1898, sec. 2756) with reference to garnishment in the circuit court provides: “ The garnishee summons and annexed affidavit shall be served on each of the several garnishees named in the manner provided in sections 2636 and 2637 for service of a summons in an action; and, except where service of the summons in the action is made without the state or by publication, also on the defendant to the action, in like manner, either before, or within ten days after, service on a garnishee. When the defendant shall have appeared in the action by an attorney such service may be made upon such attorney or upon the defendant. Unless the garnishee summons be so served on the defendant or his attorney or the proof of service on the garnishee show that, after due diligence, such service cannot be made within the state, the service on the garnishee shall become void and of no effect from the beginning.” The garnishee summons in this case was not served upon either the principal defendant or his attorney within ten days after the service upon the garnishees, nor did the proof of service upon the garnishees which was filed in the circuit court on November 1, 1897, show that after due diligence such service could not be made within the state. Prior to the motion to amend the return, the garnishees paid over the moneys owing to the principal defendants. Upon this state of facts there seems no doubt that the last clause of the statute above quoted became effective, and the service on the garnishee became “ void and of no effect from [605] the beginning.” Globe M. Co. v. Boynton, 87 Wis. 619. The plaintiff seems to contend for the rule, which has been recognized time out of mind, that jurisdiction depends upon the fact of service, and not upon the proof of service, and that at any time the proof of service may be amended to show service in fact, if it really was had, except for intervening equities. That rule has no application to the question before us. The service, or inability after diligence to serve, upon the principal defendant, is not made jurisdictional, but a condition subsequent is provided, whereby jurisdiction already acquired shall be lost, and that condition' subsequent is, by the exact words of the'statute, either omission of service in fact within ten days on the principal defendant or his attorney, or, in lieu thereof, omission of a showing in the sheriff’s return or other proof of service that such service cannot be made. Globe M. Co. v. Boynton, supra. The latter condition is not the fact of inability to serve, but the declaration of such fact in the proof of service of the garnishee summons. The process of garnishment is entirely statutory. It is a harsh and extreme remedy, out of the course of the common law, and may be, and properly is, burdened with conditions in the discretion of the legislature. Globe M. Co. v. Boynton, supra; Morawetz v. Sun Ins. Office, 96 Wis. 175, 178. With that branch of the government rests the power and authority to impose any such conditions, and, whether wise or unwise, they should be enforced by courts. It is not difficult, however, to discover a purpose to be accomplished by the provision in question which would not be satisfied by an amendment now. If in fact the principal defendant be not served within ten days, and service be not prevented by inability to find him within the state, then the garnishee is in a predicament, upon the plaintiff’s theory. If he refuses to pay to the principal defendant the amount in his hands, he may be subjected to the costs and expense of a suit in which [606] be can succeed only by showing that the defendant was so situated that service could not have been made upon him with due diligence. If, on the other hand, he pays over to the principal defendant, he must do so at the peril of being able to prove that the defendant was in a position so that service could have been made upon him Avith due diligence. It is but due recognition of the unfairness of subjecting an innocent stakeholder to a predicament of this sort that the legislature has required that if the plaintiff seeks to continue the liability of the garnishee, notwithstanding failure to serve the garnishee summons upon the principal defendant, he shall not only cause due diligence to effect such service, but shall cause it to appear by the very return itself that such due diligence has been ineffective. Hence we conclude that the attempted service upon the garnishees in this action had, long prior to November, 1900, become void and of no effect from the beginning. It cannot now be revived and validated so as to charge these garnishees with liability again for the money which they have already paid over to the principal defendants. The court’s refusal to amend affects no rights of the appellant injuriously, and should not be disturbed. By the Court.— Order appealed from is affirmed.