Edler v. Hasche

• Decision Date: 11 January 1887
• Citation: 67 Wis. 653,31 N.W. 57
• Parties: EDLER v. HASCHE AND OTHERS.
• Court: Wisconsin Supreme Court

67 Wis. 653

31 N.W. 57

EDLER

v.HASCHE AND OTHERS.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Marathon county.

Proceedings to have a satisfaction of mortgage canceled of record, and for foreclosure. On April 10, 1884, William Edler, plaintiff and appellant, and Paul Brandt, one of the defendants, who had been engaged in the manufacture of cheese in the county of Marathon, dissolved partnership. The assets of the firm consisted of land worth about $50, and improvements thereon, worth, with the machinery necessary for the prosecution of the business, about $750. Brandt assumed the payment of the debts, and bought out Edler's interest, giving in payment his note, payable November 15, 1884, secured by mortgage on the premises. Shortly afterwards the defendant Diedrich Hasche bought the property from Brandt, subject to the mortgage, and, at his request, Edler, who lived in Ozaukee county, sent the note, mortgage, and a satisfaction piece, to August Schmidt, the register of deeds of Marathon county, with instructions to turn them over to Hasche upon payment of the note. On June 10th, one Zimmerman and one Ebert, who were creditors of the firm of Edler & Brandt, and who had bought up claims against the partnership, brought separate attachment suits against them. On the same day garnishee summons were issued against Hasche. Both writs were returnable June 18th. On that day service by publication was ordered against Edler, and the case adjourned until July 18th. Garnishee process was issued against Schmidt, July 15th. Hasche and Schmidt made disclosures on June 18th and July 18th, respectively. Judgment was entered against Brandt & Edler and Hasche, and Schmidt was ordered to deliver the papers into court, which he did, having first notified Edler. Hasche paid the amount of the note into court, and the balance left after paying the two judgments ($121.21) was remitted by the justice to Edler. Pending these proceedings, Hasche had removed the building from the mortgaged premises. Thereupon Edler began this suit against Brandt and wife and Hasche and wife, in which judgment was rendered for the defendants.Carl H. Mueller, for respondents, Hasche and others.

Eldred & Brown, for appellant, Edler.

COLE, C. J.

We are clearly of the opinion that the plaintiff is entitled to have the satisfaction of the mortgage in question canceled of record. It was wrongfully placed upon the record in the first instance. This satisfaction, with the mortgage and note, was sent by the plaintiff to Schmidt, with instructions to deliver them upon payment of the mortgage debt. Schmidt had no right or authority to deliver them up to any one, except upon the performance of this condition. If he did so, he acted in his own wrong. It is claimed that he delivered these securities and the satisfaction over to Justice BRANDS, in pursuance of the order of the justice in certain garnishee proceedings. But those garnishee proceedings, as far as Schmidt was concerned, were void, and furnished no legal justification for his delivering over the satisfaction, note, and mortgage, in violation of his instructions. A party claiming protection under such proceedings must show that they are regular and valid. Now, it appears that this justice issued two writs of attachment in the cases of Zimmerman and Ebert against this plaintiff and others. The writs were issued on the tenth of June, 1884, and made returnable on the eighteenth of that month. The plaintiff [in those cases] was not a resident of the county, was not personally served with process, and made no appearance. On the return-day of the writs the justice made an order requiring the plaintiffs [in those cases] to give notice in the Wisconsin River Pilot, a newspaper published in Marathon county, to the defendant Edler, that a warrant of attachment had been issued against him, and his property attached to satisfy plaintiff's demand; and that, unless defendant should appear before the justice at his office on the eighteenth of July, 1884, at 9 o'clock in the forenoon, judgment would be rendered against him, and his property sold to pay the plaintiff's demand. This notice was duly published, but it does not appear that it was ever seen by the plaintiff in this action, or that it came to his knowledge. On the fifteenth of July affidavit for a garnishee summons was made, and the process was served on that day upon Schmidt in the Ebert suit. From the docket entries of the justice it would seem that at the same time like process was served upon Schmidt in the Zimmerman suit, though no such garnishee papers were offered in evidence, or could be found; but, on the eighteenth of July, Schmidt appeared before the justice in both suits, and answered that he had in his possession a note and mortgage belonging to Edler, the defendant therein, of the amount of $400, which had been sent him for collection; also that he had the satisfaction piece. The justice entered an order in both suits directing him to deliver these papers into court within 10 days, for the plaintiffs in those actions. These orders Schmidt complied with, but, before doing so, he notified this plaintiff, by letter, what proceedings had been taken.

It is now claimed that Schmidt rightfully parted with these papers under these orders, and that the plaintiff was bound by his acts. We deem this position untenable, because the facts show that the justice had no jurisdiction to make the orders. They can therefore justify or excuse no act done under them. The statute regulating the practice in a garnishee case like this is very plain. It provides, in substance, that the person garnished shall be summoned to appear before the justice on the return-day of the attachment. Section 3716. In this case the garnishee process was not served until nearly a month after the return-day of the attachment. Schmidt might as well have appeared voluntarily, without process. But no voluntary appearance or submission of the garnishee will confer jurisdiction, or waive the requirements of the statute. In ordinary actions, of course, a party may waive process, make a voluntary appearance, and submit to the jurisdiction of the court. “But this right a garnishee, as such, has not. He cannot voluntarily appear, and substitute his creditor's creditor for his own, because that goes to jurisdiction of the subject, not to jurisdiction of his person.” RYAN, C. J., in Steen v. Norton, 45 Wis. 417. It is elementary that the proceeding of garnishment is special, in derogation of the common law, and that the statute must be strictly pursued in order to confer jurisdiction. This is clearly laid down in Steen v. Norton, supra; Wells v. American Exp. Co., 55 Wis. 24;S. C. 11 N. W. Rep. 537, and 12 N. W. Rep. 441,--and the cases cited in opinions. See, also, Hebel v. Amazon Ins. Co., 33 Mich. 400. The court could only acquire jurisdiction of Schmidt by service and return of process as the statute required. It follows from these views that Schmidt had no justification or excuse for surrendering the note and mortgage to any one; a fortiori he had none for parting with the possession of the satisfaction piece, which was placed upon record.

The defendants Hasche and wife are the only parties who have appeared in this suit. It appears that Hasche purchased the mortgaged premises of the mortgagor, Brandt, subject to the mortgage. He states in his answer, and the evidence shows, that he was garnished in the Ebert and Zimmerman suits, and appeared on the return-day of the attachment. The docket entries of the justice show that he answered on that day as garnishee, and stated that he was indebted to the plaintiff herein in the sum of $400, when the process was served upon him. These seem to be the only...