Rasmussen v. McCabe

46 Wis. 600

• Court: Wisconsin Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Ryan, C. J.

On the first hearing of this appeal, it was said that the affidavit on which the garnishees were summoned, appears substantially to comply with the statute. Rasmussen v. McCabe, 43 Wis., 471. This now appears to have been an entire mistake. It may have occurred by comparing the affidavit with sec. 113, ch. 120, R. S. 1858, and not with see. 1, ch. 161 of 1871, amending the former section. The learned counsel of the respondent, in his brief, made many objections to the regularity of the proceedings before the justice; and amongst them, he certainly pointed out the defect in the affidavit by reference to the latter statute, but without discussion. This appears to have been overlooked by the court, which is certainly responsible for the error, especially the chief justice who wrote the opinion. It is another evidence of the great safety of early consideration of cases, following upon full oral discussion at the bar.

The defect of the affidavit is fatal to the jurisdiction of the justice in the garnishee proceeding. This was fully considered in the late case of Steen v. Norton, 45 Wis., 412. The court adheres to the rule of that case, and it governs this.

By the Court. — The judgment of the court below is affirmed.