Renier v. Hurlbut

• Decision Date: 15 December 1891
• Parties: RENIER v. HURLBUT ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 24

50 N.W. 783

RENIER

v.HURLBUT ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Judge.

Action by Mary L. Renier against Fred Hurlbut and Edwin Boaler to recover on an undertaking. Judgment for defendants in abatement. Plaintiff appeals. Reversed.

The other facts fully appear in the folowing statement by CASSODAY, J:

It appears from the record that September 26, 1888, the plaintiff recovered judgment upon a policy of insurance in the circuit court for Brown county against the Dwelling-House Insurance Company, a corporation created and organized under the laws of Massachusetts, and having its principal place of business at Boston, by reason of loss by fire of a dwelling-house, barns, and property therein, for $3,416.76; that the said Boston company appealed from said judgment to this court, and upon such appeal the defendants, Hurlbut and Boaler, executed an undertaking to the plaintiff, wherein and whereby they agreed and undertook, pursuant to the statute, that they would pay all costs which might be awarded against said Boston company on said appeal, not exceeding $250, and also undertook that, in case said judgment should be affirmed, they would pay the amount thereof; that said judgment was affirmed on said appeal, April 25, 1889, (74 Wis. 89, 42 N. W. Rep. 208;) that the remittitur thereon was not filed in the trial court until November 18, 1889; that August 1, 1890, this action was commenced, upon said undertaking, against said Hurlbut and Boaler; that the defendants herein answered, and admitted all the allegations of the complaint, and, in effect, alleged that June 28, 1889, the Saint Paul Fire & Marine Insurance Company, created and organized under the laws of Minnesota, commenced an action in the superior court for Cook county, in the state of Illinois, against this plaintiff, on a claim for $2,256, and in said action served garnishee process upon the said Boston company's agent at Chicago; that the process in said last-named action against this plaintiff was made returnable November 4, 1889, and was served only by the publication of notice for three successive weeks, commencing October 22, 1889, and ending November 5, 1889, and mailing copies thereof, etc, to the plaintiff in Wisconsin, where she resided during all the times mentioned; that upon the trial of said action the court found, in effect, the facts stated; and also that the said Boston company had not paid the plaintiff anything on said judgment, except $1,200, paid thereon July 1, 1889; that this plaintiff had not been personally served with summons or other process in the proceedings in the superior court of Cook county, and had not appeared in said proceedings; that the judgment so recovered in said Brown county was exempt from seizure on attachment or execution, under the laws of Wisconsin, during all the time mentioned, but was not exempt under the laws of Illinois; and, as a conclusion of law, that the defendants were entitled to judgment against the plaintiff, abating this action. From the judgment entered thereon accordingly the plaintiff brings this appeal.Geo. G. Greene, for appellant.

H. W. Chynoweth, for respondents.

CASSODAY, J., ( after stating the facts.)

During all the times mentioned in the foregoing statement the plaintiff, Mrs. Renier, was domiciled in and a resident of this state. The St. Paul company mentioned, claiming to be a creditor of hers for a large amount, commenced an action against her, not in any of the courts of Wisconsin, but in the superior court for Cook county, Ill., and garnished the Boston company, as a foreign corporation, by serving garnishee process upon its agent located in Chicago. Mrs. Renier did not appear in that action, nor in such garnishee proceedings, and no process or notice of any kind was ever served upon her therein otherwise than by publication, as mentioned. It is claimed that such publication was insufficient, but for the purpose of this appeal, it is assumed that the statutes of Illinois were in all respects complied with. Upon the facts stated the law is well settled by the supreme court of the United States to the effect that the Chicago court obtained no jurisdiction to render any personal judgment against Mrs. Renier. St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. Rep. 354;Pennoyer v. Neff, 95 U. S. 714;Thompson v. Whitman, 18 Wall. 457;Public Works v. Columbia College, 17 Wall. 521. To the same effect are the decisions of this court. Witt v. Meyer, 69 Wis. 595, 35 N. W. Rep. 25;Smith v. Grady, 68 Wis. 215, 31 N. W. Rep. 477. This being so, it is very obvious that the most that could be accomplished in the Chicago court was to reach property, assets, or credits belonging to Mrs. Renier, and within the jurisdiction of that court. This is apparent from the authorities cited. If there was, therefore, a want of jurisdiction in that court as to such property, assets, or credits, then the proceedings therein were null and void, and could not operate to abate or defeat the suit at bar. The question recurs whether, at the time of such garnishment, Mrs. Renier was the owner of any property, assets, or credits within such jurisdiction of the Chicago court. There is no pretense that at the time the garnishee papers were served upon the Chicago agent of the Boston company he had in his possession or under his control any tangible property belonging to Mrs. Renier. The extent of the claim is that at that time the Boston company was indebted to Mrs. Renier upon the judgment recovered in the circuit court for Brown county, mentioned in the foregoing statement, and hence that such indebtedness was attached or reached by the service of the garnishee papers upon the Boston company's agent in Chicago. If such contention can be maintained, then it is obvious that the St. Paul company might have attached such indebtedness by such garnishee proceedings in any state or city in the Union where the Boston company happened to have an office and an agent. This would necessarily be upon the theory that such indebtedness to Mrs. Renier was ambulatory, following each of the several agents of the Boston company, and, for the purposes of garnishment, having a situs with and in the office of each and all of such agents, wherever they happened to be located. If such is the law, it is certainly important that all should know it. As indicated, none of the parties to the proceedings in the Chicago court were residents of Illinois. Proceedings by garnishment are in their nature very much like the old trustee process. In such a case in Massachusetts, at an early day, the court refused to take jurisdiction, for the reason that all the parties were non-residents. Tingley v. Bateman, 10 Mass. 346. It was there said, in behalf of the court, that “the summoning of a trustee is like a process in rem. A chose in action is thereby arrested, and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered, for this purpose, as local, and as remaining at the residence of the debtor or person intrusted for the principal; and his rights, in this respect, are not to be considered as following the person of the debtor to any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides.” To the same effect are Sawyer v. Thompson, 24 N. H. 510;Bowen v. Pope, 125 Ill. 28, 17 N. E. Rep. 64. It has also been repeatedly held in Massachusetts that a trustee residing in another state, though temporarily therein when service is made upon him, is not liable to the trustee process, and especially is this so where the principal defendant is also a non-resident. Ray v. Underwood, 3...