Oelbermann v. IDE

• Decision Date: 22 September 1896
• Citation: 68 N.W. 393,93 Wis. 669
• Parties: OELBERMANN ET AL. v. IDE.
• Court: Wisconsin Supreme Court

93 Wis. 669

68 N.W. 393

OELBERMANN ET AL.

v.IDE.

Supreme Court of Wisconsin.

Sept. 22, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Emil Oelbermann against Henry P. Ide (defendant) and others, as garnishees, and George D. Ide, interpleaded, as claimant. Judgment for plaintiff, and claimant appeals. Reversed.

The parties to the original action, and the garnishee action as well, were nonresidents. Personal service was obtained on the garnishee defendants in this state. Service was obtained on the defendant in the principal action by publication. The complaint was verified in New York before S. Steinhammer, who signed as commissioner of the state of Wisconsin for New York. A seal of office was impressed upon the paper, made by an engraved seal containing words as follows: “S. Steinhammer, Commissioner for _____ in the State of New York.” The blank space left in the impression of the engraved seal was filled in by pen and ink, with the word “Wisconsin.” The affidavit for publication in no way showed that the defendant had property in this state, except by the following words: “That defendant has property in this state, to wit, moneys in the hands of” various persons (naming them), “who are garnishees in the above-entitled action now pending by above plaintiffs against said defendant in this case.” The proof of service of the garnishee process upon the garnishee defendants does not show that, after due diligence, service could not be made on the principal defendant in this state. The garnishees answered that they became severally indebted to the principal defendant, Henry P. Ide, but that George D. Ide claimed to own such indebtedness, under an assignment from Henry P. Ide made before service of the garnishee process upon them. Issue was taken on such answer. George D. Ide was duly interpleaded, and answered, setting up that such indebtedness, for a valuable consideration, was on the 9th day of September, 1890, before the service of the garnishee process on the garnishees, assigned to him, and that at the time of the making of such answer he was the owner thereof. Issue was taken on such answer. The result of the trial of such issue was that the court found, for the plaintiff, that the several assignments of indebtedness under which the interpleader claimed were void as against plaintiff, and further found that the amount of such indebtedness of the garnishee August Nuebling, at the time of the service of process upon him, was $866.68, and of the garnishee A. C. Feldt, $76.63. The assignments made to George D. Ide were, in form, to him personally. He did not claim any personal interest, other than such as belonged to him as a legatee of George L. Ide, deceased. He claimed to own the indebtedness, and hold the same, as executor of the will of George L. Ide. The court found all the facts to exist requisite to entitle plaintiff to judgment against the interpleaded defendant, and ordered judgment accordingly against him personally, and as executor of the will of George L. Ide, dismissing his answer, and for restitution of any sum he had collected from the garnishees after the service of garnishee process upon them. Judgment was entered accordingly. Exceptions were filed, which will be referred to in the opinion so far as necessary. The appeal is from the judgment against the interpleaded defendant only.F. J. Walthers, for appellant.

Orren T. Williams, for respondents.

MARSHALL, J. (after stating the facts).

If the judgment in the principal action is void for want of jurisdiction of the court to enter it, then the judgment appealed from must be reversed. It is claimed on the part of appellant that such is the case, because the verification to the complaint was insufficient to support the order for service by publication, in that it purports to have been made in New York before a commissioner of deeds for this state, and that his official character was not authenticated by an official seal; that though a seal was impressed on the paper, containing the words, “S. Steinhammer, Commissioner for _____ in the State of New York,” and the blank space in such impression was filled up with pen and ink by writing in the word “Wisconsin,” it is not a seal of office, within the meaning of the statute upon the subject (section 182, Rev. St.), sufficient to show the official character of the commissioner. An order for the service of a summons by publication can only be granted on a complaint, duly verified and filed, and an affidavit, together showing the facts required to exist. Rev. St. § 2640. Without such verified complaint on file at the time of making such order, it is a nullity. Cummings v. Tabor, 61 Wis. 185, 21 N. W. 72;Manning v. Heady, 64 Wis. 630, 25 N. W. 1;Witt v. Meyer, 69 Wis. 595, 35 N. W. 25. If the verification of a complaint is made before an officer outside this state, unless his official character is authenticated by his official seal, if the law provides for that method of...