Frisk v. Reigelman

• Decision Date: 28 January 1890
• Citation: 44 N.W. 766,75 Wis. 499
• Parties: FRISK ET AL. v. REIGELMAN ET AL.
• Court: Wisconsin Supreme Court

75 Wis. 499

44 N.W. 766

FRISK ET AL.

v.REIGELMAN ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1890.

On rehearing. For former opinion, see 43 N. W. Rep. 1117.

Action by Mathias Frisk and others against B. Bessinger and Samuel Reigelman, garnishee, etc., on an account for goods sold. Rev. St. Wis. § 2639, subd. 2, provides that service by publication may be had “when the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors, or avoid the service of a summons, or keeps himself concealed therein with the like intent.” From a judgment for plaintiffs, and an order denying a new trial, Reigelman appealed, and, on affirmance, now moves for a rehearing.James Wickham, for appellant.

T. F. Frawley, for respondents.

LYON, J.

The appellant moves for a rehearing of this cause, and alleges in his argument that no mention is made in the former opinion herein (43 N. W. Rep. 1117) of one of the points made by his counsel against the validity of the affidavit for an order for the publication of the summons in the principal action. The point is that such affidavit shows that the principal debtor, Bessinger, was a non-resident of this state, but fails to show that he had property therein. In other words, it is claimed that the affidavit brings the case within subdivision 1, § 2639, Rev. St., and that the requirements of that subdivision have not been complied with. The only statements on that subject contained in the affidavit are that “the defendant was a resident of the state of Wisconsin up to about the 19th day of December, 1887, and about said time last aforesaid he departed therefrom with intent to defraud his creditors, or to avoid the service of a summons upon him,” and “said plaintiffs are unable to ascertain either the post-office address or residence of said defendant.” The summons herein was issued and returned by the sheriff on December 19, 1887. The affidavit in question shows, therefore, that up to about the time the action was brought the principal defendant, Bessinger, was a resident of this state, and at about that time he left the state, with the intent and purpose charged. By thus leaving the state he did not cease to be a resident thereof, within the meaning of our statutes concerning the service of process in such cases. He was just as amenable to our laws as though he had concealed himself in the state with like purpose and intent. The statement that the plaintiffs were unable to...