Abrams v. Jones

4 Wis. 806

• Court: Wisconsin Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

By the Court,

Whiton, C. J.

The writ of replevin which was issued in this case, was served by replevying a quantity of dry goods found in the possession of Kellogg & Strong, who were not parties to the suit, and by reading the writ to Robert H. Strong, one of the firm of Kellogg & Strong. The defendants were not notified of the pendency of the suit in the court below, and did not appear. They were consequently defaulted, and the plaintiffs obtained judgment that they “have and retain possession of the said property in this cause replevied,”' and also for damages (which were nominal merely), together with costs taxed at $44.06.

We are of the opinion that the court below had no authority to render judgment in this case, for the reason that there was no such service of the writ of replevin as gave it jurisdiction. As there is no bill of exceptions, we cannot tell what testimony was introduced to show that the defendants below ever had the goods in their possession, or set up any claim to them; but it seems clear that in the absence of a service upon them of the writ of replevin, their right of possession (if they had any) to the goods, could not be affected by the judgment which was obtained against them. It is equally clear that the judgment which was rendered against the defendants for costs, was without authority.

' The statute is also decisive of the question. The Revised Statutes (chap. 117, sec. 10) provide that the summons shall be served on the defendant personally, or when he cannot be found* by leaving a copy at his usual place of abode with his wife, or some person of proper age. As there was no such service of the writ in this case, the court did not obtain jurisdiction of the defendants, so as to have power to render a valid judgment against them.

But the defendants contend that, admitting the judgment to be void for the reasons above given, no writ of error will lie to reverse it. They contend that as the judgment is utterly void, there is nothing upon which the writ of error can operate. But this court has decided otherwise. In the case of Mitchell vs. Kennedy (1 Wis. Rep. 511), we reversed a judgment for costs, although we held that the court below had no jurisdiction, and in numerous cases since have held the same doctrine. Jordan vs. Dennis, 7 Met. Rep. 590; Capron vs. Van Noordan, 2 Cranch Rep. 126; Striker vs. Mott, 6 Wend. Rep. 465.

Judgment reversed*