Morawetz v. Office

• Decision Date: 30 April 1897
• Parties: MORAWETZ v. SUN INS. OFFICE.
• Court: Wisconsin Supreme Court

96 Wis. 175

71 N.W. 109

MORAWETZ

v.SUN INS. OFFICE.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Moritz L. Morawetz against the Sun Insurance Office, garnishee. Judgment for garnishee, and plaintiff appeals. Affirmed.Turner, Bloodgood & Kemper, for appellant.

Quarles, Spence & Quarles and George Lines, for respondent.

CASSODAY, C. J.

It appears from the record, and is, in effect, found by the court, that February 4, 1893, the defendant, a British insurance corporation, having its principal office in the United States in the city of New York, issued its policy of fire insurance to the principal defendant, Klingbeil, then residing at Alliance, Neb., upon his stock of general merchandise located and situated in said Alliance, for $1,200; that said property was destroyed by fire July 3, 1893; that due proof of loss under such policy was made by Klingbeil, August 7, 1893; that September 30, 1893, the garnishee papers were served on the defendant corporation's agent in Milwaukee, but the sheriff returned that Klingbeil could not be found in that county nor Wisconsin; that Klingbeil appeared in the action against him October 7, 1893; that October 28, 1893, judgment was entered against him therein; that October 14, 1893, Klingbeil assigned his claim against said insurance company under the policy to M. E. Smith & Co., Kilpatrick-Koch Dry-Goods Company, and Groneweg & Schoentgen, who were interpleaded herein; that thereafter said loss was adjusted, and paid by said garnishee in Nebraska to the parties interpleaded herein, to whom the whole of the claims of said Klingbeil against the garnishee on account of said loss had been so assigned, upon their giving the garnishee a bond of indemnity; that the garnishee is, and was at the time mentioned, doing business in the various states in the Union as a fire insurance company, and in the state of Nebraska, under the statutes of that state; that the garnishee answered, setting up some of the facts stated, and denying liability; that the plaintiff took issue with such answer; that upon the trial thereof the court found the facts stated, and as conclusions of law the court found, in effect, that Klingbeil could not have brought or maintained any action against said garnished company in any court in Wisconsin on the said cause of action by the service of process upon such corporation or any officer or agent thereof, since none of the conditions existed upon which such service is authorized by the laws of Wisconsin; that this garnishment could not be maintained; that the garnishee was entitled to judgment herein dismissing the said garnishee action, with costs and disbursements of this action, to be taxed; and that judgment was thereupon ordered to be entered accordingly. From the judgment so entered thereon the plaintiff brings this appeal.

Under the statutes of this state, “a creditor is expressly authorized to proceed by garnishment against any person having any property whatever, real or personal, in his possession or under his control belonging to such creditor's debtor.” Sanb. & B. Ann. St. § 2752. “The words ‘personal property’ include money, goods, chattels, things in action and evidences of debt.” Rev. St. § 4972, subsec. 3. “Practically, garnishment is a seizure in the hands of the garnishee by notice to him creating an effectual lien upon the garnished property to satisfy whatever judgment the plaintiff may recover in the suit in which it is issued.” Rood, Garnish. § 1. “So the service of garnishee papers upon the garnishee operates as an equitable levy upon such of the debtor's property and credits as were at the time of such service in the hands of the garnishee.” Winner v. Hoyt, 68 Wis. 287, 32 N. W. 128;Milling Co. v. Boynton, 87 Wis. 632, 59 N. W. 132; Rood, Garnish. § 192, and cases there cited. “Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has been upheld mainly upon the ground that such proceeding is substantially in rem to subject specific property or credits to the payment of a specific debt.” Winner v. Hoyt, 68 Wis. 286, 287, 32 N. W. 128. “Jurisdiction is the authority to hear and determine the cause, and refers to the power of the court over the parties, the res or property in contest, and the authority of the court to entertain the suit or proceeding, and render the judgment or decree which it assumes to make. In garnishment proceedings all the statutory prerequisites to commencement of suit are jurisdictional, and must be strictly complied with.” Rood, Garnish. § 221. This court has gone further, and held that, even after jurisdiction over the res or...