Rasmussen vs. McCabe.

Attached to the foregoing affidavit, and forming a part of the same exhibit, there is found in the record the following certificate: "State of Wisconsin, County of Winnebago, ss. I hereby certify that I did, on the 25th day of November, 1872, at the town of Winneconne, in said county, personally serve on A. Rasmussen and O. Rasmussen, the garnishee defendants within named, whom I know, a true copy of a summons, the same as required to do in case of a garnishee on attachment, by handing to and leaving with them a true copy of such garnishee summons. I further levied upon and attached all the property, money, effects, credit or indebtedness in the hands or possession of said A. and O. Rasmussen, belonging to the defendant D. C. Miller, and personally summoned the said O. and A. Rasmussen as garnishees as aforesaid, to appear before the justice on the return day of the execution, and answer under oath touching their liability as garnishee of D. C. Miller." [Signed by the officer.]

The summons and attachment which seems to have been issued upon the affidavit, was addressed to O. and A. Rasmussen, and recited that an execution had been issued by said justice returnable on the 21st of December, 1872, in favor of John McCabe and Peter Kipes, plaintiffs, and against D. C. Miller, defendant, and that McCabe had made oath that the garnishees, and each of them, were indebted to said Miller, or had property, effects or credits in their hands or possession belonging to him. In other respects it appears to comply with the form prescribed by the statute (Tay. Stats., 1376, § 121, and 1395, § 216).

The answer of the garnishee under oath, as shown by the record in the justice's court, was as follows:

"John McCabe against A. Rasmussen & Co.

I am not

"A. Rasmussen sworn: I know D. C. Miller. owing him anything. I am a blacksmith. I bought him out; on shop paid him $40, and was to make a lumber wagon by February 1, 1873. I was to make that for a man in Win

Rasmussen vs. McCabe.

chester. Miller told me he was owing that man, and he wanted the wagon paid to him. A. RASMUSSEN."

It appears that on failure of the Rasmussens to deliver the wagon on the 1st of February, 1873, the justice issued an execution, dated April 3, 1873, which, omitting the formal parts, was as follows: "Whereas, judgment against A. & O. Rasmussen, garnishee, for the sum of $60, lawful money of the United States, and for $3.59 costs of suit, was recovered the 21st day of December, 1872, before me, at the suit of John McCabe and Peter Kipes, these are therefore to command you to levy distress on the goods and chattels of said A. & O. Rasmussen, garnishee (exempting such as the law exempts), and make sale thereof according to the law in such case provided, to the amount of said sums, with interest thereon, together with twenty-five cents for this execution, and the same to return to me within thirty days, to be rendered to the said John McCabe and Peter Kipes, for this judgment and costs."

It further appears, that by the direction of McCabe, the deputy sheriff levied upon the wagon here in question by virtue of this execution (it being the same wagon previously attached by the deputy sheriff, and referred to in the justice's judgment in the garnishee proceedings); and that he sold it for $36, returning the money into court with the execution satisfied in full.

The testimony of the plaintiff, on the trial of this action, tended to show that, on buying the blacksmith shop of Miller for $120, he paid Miller $40 in cash, and gave him his (plaintiff's) note for $80, payable to one Gou, to whom Miller was indebted, and who still held the note; and that the wagon in question was made for Gou in pursuance of the agreement then made, and was worth $75 or $80, but had never been finished or delivered to any person before its seizure by the sheriff.

The court appears to have rejected the summons in garnishment, the justice's judgment against the garnishees, and the

Rasmussen vs. McCabe.

execution of April 3, 1873, issued thereon; and it found, among other things, that "no judgment was ever rendered against O. Rasmussen, this plaintiff, either jointly with another or severally, as garnishee or otherwise, for any sum of money whatever;" that the wagon was worth $60; and that it was wrongfully taken by defendants on the 21st of April, 1873, as alleged in the complaint. Judginent was accordingly rendered in plaintiff's favor for $60 and costs; from which defendants appealed.

For the appellants, a brief was filed by Charles W. Felker, and the cause was argued orally by Charles Barber. They contended, among other things, that the affidavit and summons in garnishment substantially complied with the statute (Tay. Stats., 1395, §§ 215, 216, and 1376, § 121); that, if otherwise, no objection was taken before the justice to his jurisdiction; that the justice's judgment was also in substantial compliance with the statute (Tay. Stats., 1379, § 134); that all irregularities in the proceedings were waived by the failure of the garnishees to object or to appeal (Rector v. Drury, 3 Pinney, 298), and the judgment was conclusive between the parties and privies thereto; and that title to the wagon was in Miller, and any irregularity in the subsequent proceedings was of no consequence in this action.

H. B. Jackson, for the respondent, argued, among other things, 1. That the answer did not state a defense. How could the property be sold in February. 1873, upon an execution which had been returned November 25, 1872? How could a money judgment be rendered against the garnishee, on the day last named, for the value of property which he was not ordered to deliver before February 1, 1873? R. S., ch. 120, sec. 128. And after a judgment against the garnishee, how could his property be sold on an execution against Miller, as alleged in the answer? 2. That if the answer did not state a defense, the judgment for the plaintiff must be affirmed, whatever errors may have been committed, plaintiff having

Rasmussen vs. McCabe.

objected to the introduction of any evidence under the answer. K v. H, 20 Wis., 239; Gaston v. Owen [ante, p. 103]. 3. That the so-called judgment in garnishment was properly rejected, because it was immaterial under the pleadings, and also because it furnished no ground for the so-called execution of April 3, 1873, offered in evidence. 4. That the affidavit for garnishment was immaterial if the judgment in garnishment was so; and besides, it purported to be made in an action by McCabe alone against Miller, which was not the action set up in the answer or otherwise relied upon; and it failed also to comply with ch. 161, Laws of 1871, which requires such an affidavit to state that the property, etc., mentioned therein "are not by law exempt," etc. 5. That the summons in garnishment set out in the record was based upon the defective affidavit, and was invalid for that reason; and there is no proof that it was ever served. What appears in the record as possibly intended for a return to this writ, does not show what the writ served in fact contained, and does not state that any summons in the garnishee proceedings was served on Miller as then required by ch. 161 of 1871. 6. That the execution of November 22, 1872, was void for "want of style," not running in the name of the state of Wisconsin (Const., art. VII, sec. 17), and because it commanded the sheriff to "levy distress," and was not in the form given in sec. 178, ch. 120, R. S. 7. That the execution of April 3, 1873, against the Rasmussens, was also void for want of style, and because it commands the officer to levy distress; because no judgment was shown authorizing such an execution (Jansen v. Acker, 23 Wend., 480); and because there was nothing in the answer to which it was relevant.

RYAN, C. J. It was error to exclude the justice's judgment against the garnishees on the judgment of McCabe v. Miller.

It might tax the ingenuity of most justices of the peace to produce a more confused or eccentric docket of a proceeding

Rasmussen vs. McCabe.

and judgment. But a judgment was rendered by the justice here, within his jurisdiction, however erroneous.

The affidavit on which the garnishees were summoned appears substantially to comply with the statute. The justice's docket shows that they were duly summoned and appeared. Having thus acquired jurisdiction of the subject and of the persons, the justice took with it power, under certain contingencies, to render judgment against them for the value of the chattel; as would be his duty at proper time and in proper circumstances. He may have misconstrued their answers; if so, that was error. He undoubtedly rendered judgment for damages against them improperly. He should first have directed their delivery of the chattel; and, upon their failure to deliver it, have rendered judgment for the value. He appears to have done both in a single judgment, on which execution was issued and the chattel sold. This was undoubtedly error; but it was error, so to speak, which the justice had jurisdiction to commit. The remedy of the garnishees was by appeal. The judgment was erroneous, but not void. The title to the chattel passed by the sale on the execution.

It has been said that the justice rendered judgment for damages against the garnishees. It is certainly not very technical in form. But technical accuracy in the judgments of justices is not to be looked for. If they should be held to a strict rule, perhaps but few of them could be sustained. The court must accept this judgment for what, on its face, it was plainly intended by the justice.

By the Court. The judgment is reversed, and the cause remanded to the court below for a new trial.