Garland v. McKittrick

9 N.W. 160, 52 Wis. 261, 1881 Wisc. LEXIS 156

• Court: Wisconsin Supreme Court
• Decided: May 10, 1881
• Status: Published

Opinion

Cassoday, J.

The service of a summons is to secure the appearance of the party upon whom it is made. If the party so served appears, as required by the summons, the object of the service is secured. A defect in such service, therefore, is not available in the appellate court for one who so appeared. The service of the garnishee summons was the commencement of an action against such garnishee and in favor of the plaintiff in the original action. Section 3720, R. S. Such garnishee action, however, is ancillary to the principal action, or judgment and execution, and the two must necessarily be in the same court at the same time. Hence, no final judgment can be rendered against the garnishee until final judgment is rendered against the defendant in the original action. .Section 3727, R. S. Here judgment had been rendered in the principal suit more than a year before the garnishee action. The garnishee summons was not issued in aid of a pending action, but in aid of an execution issued upon a judgment previously rendered. A judgment in a court of record is defined by statute to be the final determination of the rights of the parties in the action. Section 2882, R. S. The same is true of a judgment in a justice’s court, which has not been appealed from. This being so, the defendant in the execution lost all right to remove the principal action from the justice by reason of prejudice. That could only be done on the return day of the process, and before any proceedings had on her part. Section 3616, R. S. That being so, section 3618, R. S., does not seem to be applicable to the case here presented. That section seems to require that the suit against the principal defendant, and the action in aid of it against the garnishee, should both continue before the same justice; and hence it is provided that in case one is removed the other shall go with it. But here there is one which had passed into judgment, and hence could not be removed. Section 3723, R. S., provides, in effect, that the defendant in the original action may appear and defend the proceedings against the garnishee upon the ground therein named, and upon any ground upon which the garnishee might defend the same; but the removal of a cause from one tribunal to another is strictly a statutory right, to be enjoyed only by those to whom it is given. The statute nowhere gives the right to the defendant in the execution to remove the action against his garnishee, when he has lost his right to remove the action against himself by allowing judgment to be entered. Since a garnishee suit in aid of an execution is merely auxiliary to the execution, and since it is the theory of the statute that the two should remain before the same tribunal, there may be a question whether the statute was designed to authorize the garnishee to remove his action in a case where the original action had passed into judgment, and hence not removable. But as the question is not here involved, we refrain from considering it.

By the Oourt.— The judgment of the circuit court is affirmed.