Miller v. Chi., M. & St. P. Ry. Co.

• Decision Date: 23 October 1883
• Citation: 17 N.W. 130,58 Wis. 310
• Parties: MILLER v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

58 Wis. 310

17 N.W. 130

MILLER

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed October 23, 1883.

Appeal from circuit court, La Crosse county.

Hughes & Miller, for respondent, Frank C. Miller.

Cameron, Losey & Bunn, for appellant, the Chicago, M. & St. P. Ry. Co.

TAYLOR, J.

This action was brought by the plaintiff against the railway company for a balance claimed to be due to him for work and labor performed for said company. The defense set up was payment in full. The only controversy on the trial was whether the defendant was entitled to a credit of $46.75 which it had paid to one Schierl in a garnishee suit against the company in favor of said Schierl The defendant offered in evidence the record of proceedings in a justice court in an action between Schierl, plaintiff, against Frank C. Miller, defendant, and the plaintiff in this action, and the garnishee proceedings against the company founded upon such action. The action against Miller, upon which the garnishee action was founded, was commenced by warrant of attachment under the provisions of sections 3701 and 3702, Rev. St. 1878. The warrant was not served upon the defendant, Miller, and he had no notice of the pendency of the action until long after the judgment therein was rendered against him, as well as the judgment against the garnishee, set up as a defense to this action. The warrant of attachment not having been served, an order was made and published as provided in section 3712, Rev. St. The summons in the garnishee action was not served upon Miller, as provided by chapter 253, Laws 1880, for the reason that he was not a resident of the county in which the action was pending, and had no known agent or attorney residing therein.

On the trial in the circuit court the defendant company offered in evidence the record of the proceeding in the attachment and garnishee suits. That court decided that these judgments did not constitute any defense to the plaintiff's action; and, as we understand it, the reason for such decision was that the affldavit upon which the writ of attachment issued was insufficient to give the justice court jurisdiction, and that as a consequence all the proceedings based upon it were void.

The affidavit upon which the writ of attachment issued is as follows:

“ State of Wisconsin, La Crosse County, City of La Crosse--ss.: J. Kampschroer, on behalf of Ignatz Schierl, being duly sworn, on oath says that Frank C. Miller is justly indebted to Ignatz Schierl in a sum exceeding five dollars, to-wit, in the sum of forty ($40) dollars, over and above all legal set-offs; and this affiant further says that the same is due upon express contract, to-wit; and that this affiant has good reason to believe that the said Frank C. Miller is about fraudulently to convey or dispose of his property and effects so as to hinder or delay his creditors. Therefore he applies for a warrant of attachment.

+--------------------------+
                ¦[Signed]¦J. KAMPSCHROER.” ¦
                +--------------------------+
                

This affidavit was properly sworn to before the justice who issued the warrant of attachment. The circuit court held the affidavit insufficient, because it does not state upon its face that it was made on behalf of the plaintiff. The only difference between the affidavit in this case and the one which was held insufficient by this court in the case of Wiley v. Aultman, 53 Wis. 560, [[[S. C. 11 N. W. REP. 32,] is that in the Wiley Case the words “on behalf of” the plaintiff (giving his name) were omitted. We are clearly of the opinion that the insertion of these words do not cure the defect. If the affiant had sworn that he made the affidavit on behalf of the plaintiff, instead of simply reciting it, there might be some reason for saying the case was different from the case of Wiley v. Aultman. But he has not done that. He simply says he makes it on behalf of the plaintiff. All the cases hold that a recital of this kind is not a part of the affidavit which is verified by the oath of the party making it. Hill v. Hoover, 5 Wis. 354;Sloane v. Anderson, 57 Wis. 135; [[S. C. 15 N. W. REP. 21;] Wetherwax v. Paine, 2 Mich. 556...