Ashmus v. Donohoe

• Decision Date: 06 March 1956
• Citation: 75 N.W.2d 303,57 A.L.R.2d 1106,272 Wis. 234
• Parties: , 57 A.L.R.2d 1106 William ASHMUS, Appellant, v. R. P. DONOHOE, d/b/a O. K. Donohoe Company, Respondent.
• Court: Wisconsin Supreme Court

Page 303

75 N.W.2d 303

272 Wis. 234, 57 A.L.R.2d 1106

William ASHMUS, Appellant, v. R. P. DONOHOE, d/b/a O. K. Donohoe Company, Respondent.

Supreme Court of Wisconsin.

March 6, 1956.

Further facts will be stated in the opinion.

N. Paley Phillips, Milwaukee, for appellant.

Eugene J. Sullivan, Dennis M. Sullivan, Milwaukee, for respondent.

MARTIN, Justice.

In Bestor v. Inter-County Fair, 1908, 135 Wis. 339, 341, 115 N.W. 809, this court said:

'It is well settled in this court that if a litigant desires to avail himself of want of jurisdiction of his person he must keep out of court for all purposes except that of objecting to jurisdiction, or, what is the same thing, moving to dismiss on that ground. If he takes any step consistent with the idea that the court has jurisdiction of his person, such appearance amounts to a general appearance, and gives the court jurisdiction for all purposes.'

See, also, Bitter v. Gold Creek Mining Co., 1937, 225 Wis. 55, 273 N.W. 509, 111 A.L.R. 921.

It is plaintiff's contention that the filing of the surety bond on December 6, 1954 constituted a general appearance on behalf of the defendant. Said bond, entitled in the principal action, reads:

'The summons in the above entitled action having been heretofore duly served, and the John Hennes Trucking Co. summoned as garnishee, the above named principal defendant hereby offers to permit the plaintiff above named, immediately upon entry of judgment for said plaintiff in the main action, to take judgment against him, the said defendant, and the undersigned sureties, for an amount not exceeding the sum of twenty thousand ($20,000) dollars, together with the costs and disbursements of this action, which may be obtained by said plaintiff against said principal defendant in said main action in this or any court to which the same may be removed on appeal, and also the costs of the garnishment action accrued at the time of making this offer of judgment.

'We, the undersigned sureties, hereby agree that judgment herein may be entered against us as aforesaid.'

Pursuant to the filing of said document the Hennes Company was released as garnishee defendant.

In an annotation in L.R.A.1916F, p. 587 et seq., numerous cases are cited to the statement that:

'The question whether or not the execution and filing of a bond to secure a release or redelivery of property which has been seized by writ of attachment, garnishment, replevin, sequestration, or arrest, etc., constitute an...