27 N.W. 822 (Wis. 1886), Healey v. Butler

Citation:27 N.W. 822, 66 Wis. 9
Opinion Judge:WILLIAM P. LYON, J.
Party Name:HEALEY, Appellant, v. BUTLER, Garnishee, etc., Respondent
Attorney:For the appellant there were briefs by Jones & Sanborn, and oral argument by Mr. Jones. Frank M. Hoyt, attorney, and David S. Ordway, of counsel, for the respondent.
Case Date:April 06, 1886
Court:Supreme Court of Wisconsin
 
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Page 822

27 N.W. 822 (Wis. 1886)

66 Wis. 9

HEALEY, Appellant,

v.

BUTLER, Garnishee, etc., Respondent

Supreme Court of Wisconsin

April 6, 1886

Argued March 18, 1886.

APPEAL from the Circuit Court for Portage County.

The plaintiff commenced an action on a money demand against N. B. Peterson, and at the same time instituted a garnishee proceeding against the respondent, R. D. Butler, who filed his answer therein, denying that he was indebted to Peterson, and stating, in detail, certain contracts and transactions with him. The plaintiff took issue thereon. The opinion contains a sufficient statement of the material portions of the answer, and of the testimony.

The summons in the original action was served by a private person, whose affidavit of the service thereof states that he made such service on a specified day, and at a specified place, in Clark county, "by then and there delivering to and leaving with Mary Peterson, at the last and usual place of abode of said defendant Peterson, in said Clark county, a true and correct copy of said summons," etc. In all other respects the affidavit shows a regular and valid service of the summons. The defendant, Peterson, not appearing in the action in due time, the plaintiff obtained judgment against him therein by default. Summons and affidavit in the garnishee proceedings were attempted to be served upon Peterson with the summons in the original action against him, by the same person, and the affidavit and return of such service is the same as in the original action.

After judgment in the original action the garnishee action was tried by the court and a jury. When the plaintiff offered in evidence the judgment roll in the former action, the garnishee, Butler, objected to its admission for the reason that "the proof of the service of the original summons was defective in not showing the service at the usual place of abode of the defendant." Thereupon, on motion of plaintiff, the court allowed the defendant, Peterson (who was present, and immediately thereafter testified as a witness on such trial), to enter a general appearance in the original action, and to admit service of the summons therein as of the day mentioned in the affidavit of such service. This being done, the court overruled the objection, and the judgment roll was received in evidence. No objection was made on the trial that the proof of service of the garnishee summons on Peterson was insufficient.

At the close of the testimony the court directed the jury to return a verdict for the garnishee, Butler, which they accordingly did. The plaintiff appeals from a judgment against him entered pursuant to the verdict.

Judgment reversed and cause remanded.

For the appellant there were briefs by Jones & Sanborn, and oral argument by Mr. Jones. To the point that when personal property is conveyed in fraud of creditors, it can be reached by garnishment, although the grantor could not reclaim the goods himself, they cited Keep v. Sanderson, 2 Wis. 42; Prentiss v. Danaher, 20 id. 311; 12 Mass. 140; 4 id. 508; 16 id. 320. Plaintiff, who is a creditor of the mortgagor, may attack the mortgage even when mortgagee is in possession. Jewett v. Fink, 47 Wis. 446.

Frank M. Hoyt, attorney, and David S. Ordway, of counsel,...

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