Winner v. Hoyt

• Decision Date: 01 March 1887
• Citation: 68 Wis. 278,32 N.W. 128
• Parties: WINNER v. HOYT, IMPLEADED, ETC. (FIRST CASE.) WINNER v. SAME AND ANOTHER, GARNISHEES, IMPLEADED, ETC. (SECOND CASE.)
• Court: Wisconsin Supreme Court

68 Wis. 278

32 N.W. 128

WINNER

v.HOYT, IMPLEADED, ETC. (FIRST CASE.)

WINNER

v.SAME AND ANOTHER, GARNISHEES, IMPLEADED, ETC. (SECOND CASE.)

Supreme Court of Wisconsin.

March 1, 1887.

Appeals from Milwaukee county court.

May 28, 1885, the plaintiff, in an action commenced by summons and attachment, personally served on both defendants, April 23 and 29, 1885, upon a debt accruing prior to April 16, 1885, recovered judgment for $2,203.18 against the firm, composed of said defendants E. S. Hoyt and Wesley Kinney, in the county court for Milwaukee county. May 11, 1885, the defendants, E. S. Hoyt and Kinney, by S. M. Dixon, as their attorney, appeared in said action, and traversed said attachment, which traverse was dropped and abandoned by consent of all parties. An alias execution was issued upon the judgment, and August 6 and 7, 1885, the garnishee summons and affidavit were served by the sheriff upon the defendant Kinney, and also upon the garnishees, Frank M. Hoyt and Ephraim Mariner. The sheriff, August 12, 1885, returned: “The defendant E. S. Hoyt could not, after using due diligence, search, and inquiry, be found in my county.” August 27, 1885, Frank M. Hoyt, as such garnishee, answered, denying all indebtedness and liability to said firm, or of having in his hands any property belonging to the firm. August 31, 1885, the plaintiff took issue with such answer of the garnishee. November 16, 1885, the cause was tried, and thereupon the trial court found in favor of the garnishee, and November 28, 1885, and on motion of Ephraim Mariner and Frank M. Hoyt, attorneys for defendants therein, judgment was entered against the plaintiff, and in favor of the garnishee, dismissing the action, with costs against the plaintiff. From that judgment the plaintiff appealed to this court, and May 15, 1886, the judgment was reversed, and the cause was “remanded for further proceedings according to law.” 66 Wis. 227, 251, 28 N. W. Rep. 380. July 19, 1886, the remittitur was filed in the trial court, and thereupon the plaintiff moved for judgment against the garnishee Frank M. Hoyt. September 10, 1886, the said E. S. Hoyt, who appeared in the case for that purpose only, and upon the papers and proceedings on file and of record in the action, and upon certain affidavits, obtained an order to show cause why the service of the garnishee summons and affidavit therein should not be vacated and set aside and held and declared to be void from the beginning, and upon the hearing of said motion, it was, October 30, 1886, ordered by the court that said motion be, and the same was thereby, denied, from which, and the whole thereof, said E. S. Hoyt brings one of these appeals.

On the same October 30, 1886, in pursuance of an order to show cause previously made, and based upon the records and proceedings in said principal action, and said action against said garnishees, it was ordered, in effect, that leave be, and the same was thereby, granted to the deputy-sheriff who served and returned said summons in garnishment to amend his return of such service thereon by adding to such return the statement that, after due diligence, service of the said summons could not be made upon the said defendant E. S. Hoyt within the state of Wisconsin. From that order, and the whole thereof, the garnishees, Mariner and Frank M. Hoyt, bring one of these appeals. The facts appearing in the papers and records upon which said orders so appealed from (or one of them) were based, in addition to those already stated, were, in effect, that the debt upon which said judgment was recovered was contracted by the firm and copartnership composed of said E. S. Hoyt and Wesley Kinney, and in the course of their partnership business; that, from the time the property of said firm was transferred to Frank M. Hoyt in April, 1885, to about August 6, 1885, said E. S. Hoyt was employed by the said Frank M. Hoyt in collecting old accounts of said firm in different parts of the country; that said traverse was never filed, nor any notice of retainer and appearance by said Dixon was ever served on the plaintiff's attorney, nor entered in the clerk's office; that said Frank M. Hoyt and said Mariner acted as attorneys in the principal action, and the judgment was entered therein upon their motion; that said Dixon did not act as such attorney except in making said answer of traverse, but the said Frank M. Hoyt had charge of the litigation; that shortly after May 22, 1885, it was verbally stipulated, on the part of the plaintiff and said Frank M. Hoyt, in effect, that said traverse be considered withdrawn, and the attachment issued therein dismissed, and judgment be entered therein at once by default, which was carried into effect; that from August 7, 1885, to December 31, 1885, inclusive, the said E. S. Hoyt was in the state of Wisconsin; that from June 1, 1885, to August 20, 1886, inclusive, his business was that of a traveling agent, spending most of his time in making trips from place to place in the country outside of Milwaukee county in taking orders for merchandise and making collections for goods sold by Webster Bros., liquor dealers, at No. 216 West Water street, in the city of Milwaukee; that before starting upon such trips he always agreed with his employers upon the route to be taken, and fixed approximately the dates he would be at the various stopping places upon the way; that said E. S. Hoyt's duties as such traveling agent kept him nearly all the time in the interior of the state, outside of Milwaukee county, requiring him to go rapidly from place to place, remaining but a day or two, and often but a few hours, at a time in any town, city, or village, returning to Milwaukee only occasionally and for a very brief stay before setting out again upon his business tours; that during the times mentioned the said E. S. Hoyt was a resident of Milwaukee county, and was a bachelor, without any family, having a rented room in New Hampshire block, on Grand avenue in Milwaukee, and that when at home he obtained his meals at restaurants and other places where he might find it convenient; that the deputy-sheriff of said county, to whom said garnishee summons and affidavit were delivered for service, knew said E. S. Hoyt at the time; that while he had said garnishee summons and affidavit in his possession as such deputy-sheriff he went to said room several times for the purpose of serving the same upon said E. S. Hoyt, but always found said room locked, and was informed by the janitor of the building, of whom he inquired of said E. S. Hoyt, that he was away from home; that, during said time he had possession of said garnishee summons and affidavit, he also inquired several times at the counting-room of said Webster Bros. in said city for said E. S. Hoyt, and sought information there as to his whereabouts, and was each time informed that he was in the country on a trip for said firm; that although he was several times informed at said counting-room where he was when last heard from, yet he was unable to learn where he would be at any definite time; that he was informed by persons in charge of said counting-room and store, and verily believed, that he was not expected to return to Milwaukee county within two or three weeks from the time said garnishee summons was so served upon said Kinney; that, from the search and inquiry so made by him after said E. S. Hoyt, he was at the time of having possession of said garnishee summons, and was still on September 23, 1886, of the opinion that, after due diligence, service thereof upon said E. S. Hoyt could not be made within the state of Wisconsin, and he desired at said last-named date so to amend his return upon said summons that the same should so state; that as a matter of fact said E. S. Hoyt was in Milwaukee from the evening of August 14, 1885, to the forenoon of August 19, 1885, most of the time at the store of said Webster Bros., or at his said room; that, soon after the service of the garnishee summons on Frank M. Hoyt, the said E. S. Hoyt was fully advised by said Frank M. Hoyt, who was his real attorney and adviser in the matter, of the commencement of said garnishee proceedings, and he continued to be aware of their pendency and progress up to August, 1886, and that he had neglected to appear and answer or defend, for the reason that Frank M. Hoyt would and had, as garnishee, made every possible defense to such garnishment; that said E. S. Hoyt's affidavit and order to show cause were prepared under the supervision of said Frank M. Hoyt.

*130First case-- Joshua Stark, for respondent. Johnson, Rietbrock & Halsey, for appellant.

Second case-- Joshua Stark, for respondent. E. Mariner, F. M. Hoyt, and Johnson, Rietbrock & Halsey, for appellants.

CASSODAY, J.

The issues upon the answer of the garnishee Frank M. Hoyt were fully tried by the court, without a jury, and findings were made and judgment entered upon the merits in favor of the garnishee. Upon the appeal from that judgment, it was held by this court, in effect, that, as the several chattel mortgages and assignments to the several creditors, transferring the entire property of the insolvent firm of E. S. Hoyt & Co., were made in pursuance of the same agreement, at substantially the same time, and all relating to the same subject-matter, for the same common purpose of having one of such mortgagees and assignees, for himself, and as agent and trustee for the others, take immediate possession and convert such property into money, and divide the same pro rata among such favored creditors, they must be construed together as one instrument, and, when so construed, they constituted, in legal effect, a general assignment, with preferences for the benefit of such favored creditors, and hence, under the statutes, void as to other creditors, including the plaintiff. 66 Wis. 227, 28 N. W. Rep. 380. A specific judgment was not directed upon that reversal, because certain...