De Laval Separator Co. v. Hofberger

• Decision Date: 05 October 1915
• Citation: 154 N.W. 387,161 Wis. 344
• Parties: DE LAVAL SEPARATOR CO. v. HOFBERGER.
• Court: Wisconsin Supreme Court

161 Wis. 344

154 N.W. 387

DE LAVAL SEPARATOR CO.

v.HOFBERGER.

Supreme Court of Wisconsin.

Oct. 5, 1915.

Appeal from Circuit Court, Oconto County; Wm. B. Quinlan, Judge.

Action by the De Laval Separator Company against Frank J. Hofberger. Judgment for plaintiff in a justice's court was reversed on certiorari, and plaintiff appeals. Reversed, with directions.E. C. Smith, of Seymour, for appellant.

George Crawford, of Gillett, for respondent.

TIMLIN, J.

About four years ago the appellant began suit in justice court against the respondent to recover a balance of $4.35. This trifling controversy has been in litigation ever since in justice court, circuit court, and now in the Supreme Court. It is not denied that the respondent owes this sum to the appellant, but the litigation has been over the question whether the appellant proceeded properly, or rather whether the appellant's lawyer and the justice of the peace proceeded properly, in appellant's attempt to collect this small sum.

[1] The science of jurisprudence must be far from perfection when the real object and purpose of an action can be lost sight of and a judicial controversy relating to questions of procedure and having no concern with the merits of the action in this way substituted for the real controversy between the parties. Courts of justices of the peace are recognized in the Constitution and statutes of this state, and they are supposed to furnish cheap and convenient tribunals for the determination of petty differences which may arise between parties. It requires no argument to establish that the way to such courts should be smooth and easy. It was long ago declared to be the law that such inferior tribunals must keep strictly within the limits of the jurisdiction conferred upon them, but this does not mean that the superior courts are to be hostile to their judgments or solicitous to trip them up for every petty error. It means that the justices are to exercise only the jurisdiction conferred upon them by statute fairly interpreted. This court has been for some time engaged in an attempt to mitigate the rigor of some of the ancient rules on this subject. Cowles v. Neillsville, 137 Wis. 384, 119 N. W. 91;State ex rel. Cooper v. Brazee, 139 Wis. 541, 121 N. W. 247;Kremer v. Arians, 141 Wis. 662, 124 N. W. 1064;Kuehn v. Nero, 145 Wis. 256, 130 N. W. 56;State ex rel. Kassner v. Momsen, 153 Wis. 203, 140 N. W. 1117.

On October 24, 1911, a summons in favor of the plaintiff and appellant and against the respondent, returnable November 1, 1911, was issued by a justice of the peace. At the same time and in the same action a summons in garnishment, returnable at the same time and place, was properly issued, wherein one Perry was summoned as garnishee defendant. The officer to whom the original summons was delivered for service made the following return:

“Venue. I hereby certify that, Frank J. Hofberger not being found and having no residence or no known agent or attorney within the said county, I am unable to serve upon the within named defendant.”

Perry appeared in response to the summons in garnishment, and filed his written answer, duly verified, admitting an indebtedness to the defendant in the sum of $15 or $20. The defendant, Hofberger, did not appear, either in the garnishment action or in the principal action. Each action was then adjourned until December 1, 1911, and an order for publication made against the principal defendant. December 1, 1911, the principal case was called and held open until December 2d. On the date last mentioned, after receiving and filing affidavit of publication, judgment was rendered in favor of the plaintifffor $12.66 damages and costs, and the garnishee defendant was ordered to pay that sum into court.

We decide all points in the case, including those not specifically mentioned in the foregoing statement, as follows:

[2] 1. The return of the officer on the principal summons was, with the answer of the garnishee, sufficient to authorize service by publication under sections 3712, 3713, 3718. Section 3718 relates to the service of the garnishee summons upon the principal defendant. The section relating to service of summons in justice court is section 3600, and there substituted service is made when the defendant be not...