Smith, Thorndike & Brown Co. v. Mutual Fire Insurance
Wisconsin Supreme Court
Appeal from an order of the superior court of Milwaukee county: Orren T. "Williams, Judge. On May 25, 1897, garnishee summons was served upon the agents of the garnishee insurance companies, at Milwaukee. On November 1st it was filed with the clerk of the court, bearing the return of a deputy sheriff certifying such service, but making no mention either of service or of any attempt to serve upon the principal defendants.
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Appeal from an order of the superior court of Milwaukee county: Orren T. "Williams, Judge. On May 25, 1897, garnishee summons was served upon the agents of the garnishee insurance companies, at Milwaukee. On November 1st it was filed with the clerk of the court, bearing the return of a deputy sheriff certifying such service, but making no mention either of service or of any attempt to serve upon the principal defendants. Such summons was accompanied by an affidavit of Charles E. Wilde that he had served it on one of the principal defendants at Milwaukee on the 6th day of August, 1897.’ The…
1ConcurrenceMaeshall, J.
I concur in the decision in this case solely because, in the interim between the service on the garnishees and the motion for leave to amend the officer’s return, such garnishees ceased to be debtors of defendants in the main action. It is elementary that an officer should be allowed to correct a mistake in his return as of course, and even without notice, when it will not do injustice to litigants or third parties, but not otherwise. The idea advanced by my brethren, that the return of service on a garnishee summons is an exception to that rule, in my judgment, Avould have been abandoned…
2Cases cited3 opinions
- Main v. LynchCourt of Appeals of Maryland · 1880
- Mangold v. DooleySupreme Court of Missouri · 1886
- Mayer & Lowenstein v. Chattahoochee National BankSupreme Court of Georgia · 1872