Phillips v. Eggert

113 N.W. 686, 133 Wis. 318, 1907 Wisc. LEXIS 48

• Court: Wisconsin Supreme Court
• Decided: November 5, 1907
• Status: Published

Opinion

Winslow, J.

The trial judge concluded that there was no competent evidence that the transit company owned the boat which was levied on, nor of the value of its interest if it had any; but we are entirely unable to agree with these conclusions. -The sheriff’s return upon the writ of attachment, which was' introduced in evidence, states positively that the steamer and its equipment were the property of the defendant named in the writ. This was an admission "by the defendant sheriff of a fact against his interest, made in the course of his official business, and was, upon well-understood principles, prima facie evidence of such fact, both against the sheriff and against the sureties on his bond. 2 Brandt, Surety-ship (3d ed.) §§ 796 — 799. There was, therefore, competent evidence that the boat was the sole property of the transit company, which was entirely sufficient until overcome by proof to the contrary, and there was in fact no such proof. There was also evidence by a witness who testified that he was acquainted with the value of such property and had examined the boat in question, to the effect that in his judgment it was worth $25,000, and there was no evidence to the contrary. It follows, therefore, that there was competent prima facie evidence upon both propositions.

The third ground upon which a verdict for the defendants was directed was in effect that the plaintiff had not shown that the cause of action upon which he sued in the attachment action was one of the causes of action named in sec. 3348, Stats. (1898). The court evidently assumed that there could he no valid attachment of a boat except for a cause of action named in the section cited. This conclusion was also erroneous. That section and its accompanying sections following were passed for the purpose of giving a .lien upon ships, boats, and vessels for certain demands against the owners, and providing for the enforcement or foreclosure of such liens by a special form of attachment in a personal action against the owner. The legislature might just as well have provided that such liens should he perfected and enforced by an action in equity as by attachment. There is neither express nor implied provision anywhere to the effect that this remedy shall he exclusive, or that a man’s interest in a boat or vessel shall not he subject to seizure on a writ of attachment issued under the general provisions of law authorizing the issuance of such writs in other actions. All property in the state of tbe defendant named in the writ, not exempt from execution, is liable to seizure upon a writ of attachment. Sec. 2738, Stats. (1898). The fact that the property may consist of an interest in a vessel makes no difference. Such a seizure is not an invasion of the exclusive jurisdiction of the admiralty courts of the United States, because the vessel itself is not proceeded against. It is simply the reaching of property rights in the vessel by attachment in a personal action against the owner, and this is a common-law remedy preserved by the admiralty law itself. Subd. 8, sec. 563, R. S. U. S. [U. S. Comp. Stat. 1901, p. 457] ; Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 71 N. W. 804; Reynolds v. Nielson, 116 Wis. 483, 93 N. W. 455; The Moses Taylor, 4 Wall. 411.

Thus all the reasons given by the court for directing a verdict for the defendants are shown to be in fact no rear sons.

It is argued by the respondents that the record shows that there was no valid service of the summons upon the defendant transit company in the attachment action, and hence that no jurisdiction was obtained in that action and the judgment rendered was void. This contention is based upon the fact that the defendant Bggerb testified that he served the summons and attachment papers on the captain of the boat at the time of the seizure, and the claim is that the captain was not an agent of the transit company having charge of any business therefor, within the meaning of snbd. 13, sec. 2637, Stats. (1898), and hence there was no service of summons. We are not required to decide and do not decide the question whether such service was a valid service or not. The judgment in the main action was introduced in evidence and recited that personal service of the summons had been made on the defendant. This recital was prima facie evidence of the fact. Neither the summons itself nor the return was introduced in evidence, and the fact that the sheriff served the summons on the captain, even conceding that this was insufficient, does not necessarily prove that service was not duly made on the corporation itself in some other way. So there was sufficient proof that the judgment in the attachment case was based upon due service of process.

There was certainly ample evidence to go to the jury upon the question whether the sheriff lost possession of the boat by reason of negligence. Crocker, Sheriffs (3ded.) § 855. The question whether the plaintiff’s attorney consented that no watchman or deputy he placed on the boat was in dispute, and has not been decided.

By the Court. — Judgment reversed, and action remanded for a new trial.