Edler v. Hasche

Cole, C. J.

We are clearly of the opinion that the plaintiff is entitled to have the satisfaction of the mortgage in question canceled of record. It was wrongfully placed upon the record in the first instance. This satisfaction, with the mortgage and note, was sent by the plaintiff to Schmidt, with instructions to deliver them upon payment *657 of the mortgage debt. Schmidt had no right or authority to deliver them up to any one, except upon the performance of this condition. If he did so, he acted in his own wrong. It is claimed, that he delivered these securities and the' satisfaction over to Justice .Brands, in pursuance of the order of the justice in certain garnishee proceedings. But those garnishee proceedings, so far as Schmidt was concerned, were void, and furnished no legal justification for Iris delivering over the satisfaction, note, and mortgage, in violation of his instructions. A party claiming protection under such proceedings must show that they are regular and valid. Now, it appears that this justice issijed two writs of attachment in the cases of Zimmerman and -Ebert, against this plaintiff and others. The writs were issued on the 10th of June, 1884, and made returnable on the 18th of that month. The plaintiff herein, William Mile?', was not a resident of the county, was not personally served with process, and made no appearance. On the return-day of the writs the justice made an order requiring the plaintiffs j in those cases] to give notice in the Wisconsin River Pilot, a newspaper published in Marathon county, to the defendant Edler, that a warrant of attachment had been issued against him, and his property attached to satisfy plaintiffs' demand; and that unless defendant should.appear before the justice at his office on the 18th of July, 1884, at nine o’clock in the forenoon, judgment would be rendered against him, and his property sold to pay the plaintiffs’ demand. This notice was duly published, but it does not. appear that it was ever seen by tbe plaintiff in this action, or that it came to his knowledge. On the 15th of July affidavit for a garnishee summons was made, and the process was served on that day upon Schmidt in the Ebert suit. Erom tbe docket entries of tbe justice it would seem that at the same time a like process was served upon Schmidt-in the Zimmerman suit, though no such garnishee papers *658 were offered, in evidence or could be found; but on the 18th of July Schmidt appeared before the justice in both suits and answered that he had in his possession a note and mortgage belonging to Edler, the defendant therein, of the amount of $400, which had been sent him for collection; also that he had the satisfaction piece. The justice entered an order in both suits directing him to deliver these papers into court within ten days, for'the benefit of the plaintiffs in those actions. These orders Schmidt complied with, but before doing so he notified this plaintiff by letter what proceedings had been taken.

It is now claimed.that Schmidt rightfully parted with these papers under these orders, and that the plaintiff is bound by his acts. We deem this position untenable, because the facts show that the justice had no jurisdiction to make the orders. They can therefore justify or excuse no act done under them. The statute regulating the practice in a garnishee case like this is very plain. It provides, in substance, that the person garnished shall be summoned to appear before the justice on the return day of the attachment. Sec. 3116, R. S. In this case the garnishee process was not served until nearly a month after the return day of the attachment. Schmidt might as 17611 have appeared voluntarily'without process. -But no voluntary appearance or submission of the garnishee will confer jurisdiction or waive the requirements of the statute. In ordinary actions, of course, a party may waive process, make a voluntary appearance, and submit to the jurisdiction of the court. “ But this right a garnishee, as such, has not. He cannot voluntarily appear and substitute his creditor’s creditor for his own, because that goes to jurisdiction of the subject, not to jurisdiction of his person.” Ryan, C. J., in Steen v. Norton, 45 Wis. 417 . It is elementary that the proceeding of garnishment is special, in derogation of the common law, and that the statute must be strictly pursued in order to confer

*659 jurisdiction. This is clearly laid down in Steen v. Norton, supra; Wells v. Am. Exp. Co. 55 Wis. 24 ; and the cases cited in opinions. See, also, Hebel v. Amazon Ins. Co. 33 Mich. 400 . The court could only acquire jurisdiction of Schmidt by service and return of process as the statute required. It follows from these views that Schmidt had no justification or excuse for surrendering the note and mortgage to any one; a fortiori he had none for parting with the possession of the satisfaction piece, which was placed upon record.

The defendants Hasehe and wife are the only parties who have appeared in this suit. It appears that Hasehe purchased the mortgaged premises of the mortgagor, Brandt, subject to the mortgage. lie states in his answer, and the evidence shows, that he was garnished in the Ebert and Zimmerman suits and appeared on the return day of the attachment. The docket entries 'of the justice show that he answered on that daj? as garnishee, and stated that he was indebted to the plaintiff herein in the sum of $400 when the ■process was served upon him. These seem to be the only facts stated by him in his answer. The indebtedness was the purchase price of the premises which he had bought. The court found that an agreement was made betweeñ the ■plaintiff and Hasehe, whereby the latter was to pay the plaintiff the principal of the -note and mortgage given by Brandt. We do not find any sufficient evidence of an agreement by which the plaintiff was to accept Hasehe as his debtor and look to him for his debt. There was certainly no novation. The mortgage and note were kept alive, as all admit. True, the plaintiff had been notified in May, by a letter signed by both Brandt and Ilasche, that the latter had purchased the premises and had undertaken to pay the mortgage, and that he would do so if the securities were sent to Schmidt with a satisfaction piece. These are the simple ■ facts as to Hasehe’s indebtedness to the plaintiff, as *660 we understand the testimony, and it is plain that Hasche did not owe the plaintiff any sum when he was garnished. Hasche was required by every principle of good faith to have stated these facts as to his indebtedness in his answer in the garnishee suits. But this he did not do, but admitted an absolute indebtedness to the plaintiff of $400. On the answer, the justice in effect ordered him to pay into court the amount due on the note and mortgage, and then directed that Schmidt deliver to him the satisfaction piece. We have seen that the justice had no jurisdiction over Schmidt, and had no power to make an order for him to deliver up the papers in his possession. Hasche knew that the note and mortgage had been sent to Schmidt for collection' merely, and he ought to have known .that Schmidt had no authority to deliver them up to anyone except upon payment; for the papers were sent to Schmidt by the plaintiff at Hasche1 s request, so that the mortgage could be paid.

The counsel for plaintiff claims that the evidence shows collusion between Hasche and Zimmerman and Ebert, and that the former acted entirely in their interest. There are circumstances which tend to sustain that view, but we rather conclude that Hasche was ignorant and did not know that, at least, the law required he should be strictly impartial in the matter and make to the justice a full and fair disclosure of all the facts in regard to his alleged indebtedness to the plaintiff. He was certainly in duty bound to do that much, both for his own protection and the protection of the plaintiff, who was not present to make the defense. The rule is sometimes stated that it is the duty of the garnishee to interpose any defense upon the merits which he knows the principal defendant might interpose were he present defending against the proceeding. But Hasche made an unqualified admission of indebtedness, when the real facts leave it in doubt whether he was the debtor of the plaintiff so as to be' liable as garnishee. It does not *661 appear that be was liable for tbe payment of the note and mortgage, or, rather, that he could have been compelled to pay them. In a word, he failed to state the real facts so that the justice could decide as to his liability. It may therefore be that he has paid over, money under an order which the justice would never have made had he made a correct and full disclosure of the facts.

"VVe have made these remarks in view of the matters stated in the answer, which are evidently relied- on as a defense, without intending to conclude Ilasche on the question of the payment of the mortgage debt. It may be that he can show that the mortgage has been legally paid. But that question is left open for further investigation. There must be a foreclosure for whatever shall be found due upon the mortgage. If, on a sale of the mortgaged property, there should be a deficiency, and it should appear that Ilasche assumed and agreed to pay the mortgage debt, there may be' a judgment for such deficiency against him. It appears that he has removed a building from the mortgaged premises onto his own land, greatly depreciating the value, and rendering the security inadequate for the payment of the.mortgage. This was waste, and in case of deficiency. the plaintiff is entitled to a judgment against Hasehe for the value of the building wrongfully removed. Whether the plaintiff would be entitled to have an order making the value of the building a lien upon the premises to which it has been removed, as his counsel claims, is a question left for future consideration. But Ilasche’s liability for waste which has so impaired the security that the mortgage debt cannot be realized on sale, upon every principle of justice is clear and must be affirmed. Jones v. Costigan, 12 Wis. 678 ; Kimball v. Darling, 32 Wis. 676 ; Taylor v. Collins, 51 Wis. 124 ; Hoile v. Bailey, 58 Wis. 454 .

• We do not think that the other points made in the brief of defendant’s counsel require notice.

See note to this case in 31 N. W. Rep. 61 .— Rep.

By the Gourt. — -The judgment of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion.