Healey v. Butler

• Decision Date: 06 April 1886
• Parties: HEALEY v. BUTLER, GARNISHEE, ETC.
• Court: Wisconsin Supreme Court

66 Wis. 9

27 N.W. 822

HEALEY

v.BUTLER, GARNISHEE, ETC.

Supreme Court of Wisconsin.

Filed April 6, 1886.

Appeal from circuit court, 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.Jones & Sanborn, for appellant, C. Healey.

F. M. Hoyt, for respondent, R. D. Butler, Garnishee, etc.

LYON, J.

1. The judgment against Peterson in the original action, having been entered by default, and Peterson not having appeared in the action, is void unless a proper service of the summons therein is shown by the return, or, that failing, unless the subsequent appearance and admission of service by Peterson cures the defect. If that judgment is void, there is no foundation for the garnishee judgment, and the garnishee proceedings should have been dismissed. Further, if the record fails to show that the garnishee summons was properly served upon Peterson, and if he did not appear in the garnishee proceedings, the garnishee judgment is void. Rev. St. 742, § 2756.

The only objection made to the affidavit of service of the summons upon Peterson, in either action, is that it fails to show that copies thereof were left “at his usual place of abode,” as required by statute. Section 2636, § 4. The proof of service upon Peterson in each case is that the summons was served, in the town of Unity, in Clark county, “at his last and usual place of abode in said Clark county.” It is argued on behalf of the garnishee that this does not show service at the usual place of abode of Peterson, but only at his last and usual place of abode in Clark county; and that the proof is not inconsistent with the hypothesis that Peterson then had a “usual place of abode” in some other county of the state. This is altogether too nice a criticism upon the language employed in the affidavits of service. The plain, obvious meaning of the language is that the service was made at Peterson's last and usual place of abode, and that such place of abode was then in Clark county. The words “last and” are mere surplusage. The last and usual place of abode of a person is necessarily his present usual place of abode. This construction of the language employed in the affidavits of service is so manifestly reasonable that we should decline to follow adjudications elsewhere to the contrary; but we have been referred to none which fully assert the doctrine here contended for by counsel.

The cases cited which come nearest sustaining the position of the garnishee are Sanborn v. Stickney, 69 Me. 349, and Ames v. Winsor, 19 Pick 248; but in each of these cases the residence of the defendant was stated in the writ to be in one county, and the return to the writ showed a service thereof in another county. It was held that the presumption was that the defendant was at the time dwelling in the county specified in the writ, and hence that service at his last and usual place of abode in another county failed to meet the requirements of the statute, which required service to be made at the “place of last and usual abode.” We are not inclined to dissent from the doctrine of these cases, as therein applied.

In Blanton v. Jamison, 3 Mo. 38, the return of the sheriff was that he served the writ on the defendant by going to his house, and leaving a true copy of the summons with one of his family, etc. The statute of that state required that a true and attested copy of the writ should be left at the dwelling-house or place of abode of defendant, etc. The court says that the sheriff may not have gone to the dwelling-house of the defendant, or may not have left the copy at such dwelling-house or place of abode. This criticism upon the return seems to be well founded.

In Brown v. Langlois, 70 Mo. 226, the return was that a copy of the writ, etc., was left at the usual place of abode of the defendant, when in the city of Cape Girardeau. The court very properly held that the italicized...