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in Milwaukee, but the sheriff returned that Klingbeil could not be found in that county nor Wisconsin; that Klingbeil appeared in an action against him October 7, 1893; that October 177 28, 1893, judgment was entered against him therein; that October 14, 1893, Klingbeil assigned his claim against said insurance company under the policy to M. E. Smith & Co., Kilpatrick-Koch Dry Goods Company, and Groneweg & Schoentgen, who were interpleaded herein; that thereafter said loss was adjusted, and paid by said garnishee in Nebraska to the parties interpleaded herein, to whom the whole of the claims of said Klingbeil against the garnishee on account of said loss had been so assigned, upon their giving the garnishee a bond of indemnity; that the garnishee is, and was at the time mentioned, doing business in the various states in the Union as a fire insurance company, and in the state of Nebraska under the statutes of that state; that the garnishee answered, setting up some of the facts stated, and denying liability; that the plaintiff took issue with such answer; that upon the trial thereof the court found the facts stated, and as conclusions of law the court found, in effect, that Kingbeil could not have brought or maintained any action against said garnished company in any court in Wisconsin on the said cause of action by the service of process upon such corporation or any officer or agent thereof, since none of the conditions existed upon which such service is authorized by the laws of Wisconsin; that this garnishment could not be maintained; that the garnishee was entitled to judgment herein dismissing the said garnishee action, with costs and disbursements of this action, to be taxed; and that judgment was thereupon ordered to be entered accordingly. From the judgment so entered thereon the plaintiff brings this appeal.

Under the statutes of this state, a creditor is expressly authorized to proceed by garnishment against any person having "any property whatever, real or personal, in his possession or under his control belonging to such creditor's debtor": Sanborn and Berryman's Annotated Statutes, sec. 2752. "The words 'personal property' include money, goods, chattels, things in 178 action and evidences of debt": Rev. Stats., sec. 4972, subd. 3.

"Practically, garnishment is a seizure in the hands of the garnishee by notice to him, creating an effectual lien upon the garnished property to satisfy whatever judgment the plaintiff may recover in the suit in which it is issued": Rood on Garnishment, sec. 1. "So the service of garnishee papers upon the garnishee operates as an equitable levy upon such of the debtor's

property and credits as were at the time of such service in the hands of the garnishee": Winner v. Hoyt, 68 Wis. 287; Globe Milling Co. v. Boynton, 87 Wis. 632; Rood on Garnishment, sec. 192, and cases there cited. "Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has been upheld mainly upon the ground that such proceeding is substantially in rem to subject specific property or eredits to the payment of a specific debt": Winner v. Hoyt, 68 Wis. 286, 287. "Jurisdiction is the authority to hear and determine the cause, and refers to the power of the court over the parties, the res or property in contest, and the authority of the court to entertain the suit or proceeding, and render the judgment or decree which it assumes to make. In garnishment proceedings all the statutory prerequisites to commencement of suit are jurisdictional and must be strictly complied with": Rood on Garnishment, sec. 221. This court has gone further, and held that, even after jurisdiction over the res or property has been acquired by the service of garnishee papers upon the garnishee, yet that such jurisdiction may be divested and lost by failure to comply with the statute as to service upon the principal defendant or his attorney: Sanborn and Berryman's Annotated Statutes, sec. 2756; Globe Milling Co. v. Boynton, 87 Wis. 632. This is on the theory, often adjudicated, to the effect that "the authority to institute and prosecute garnishee proceedings is entirely stat utory, and, unless the requirements of the statutes are complied with, the proceedings cannot be sustained": McDonald v. Vinette, 58 Wis. 179 619. "Property outside of the state is not the subject of garnishment under our statute": Bates v. Chicago etc. R. R. Co., 60 Wis. 296; 50 Am. Rep. 369; Renier v. Hurlbut, 81 Wis. 30; 29 Am. St. Rep. 850.

There is no pretense that the garnishee's agent in this state upon whom the garnishee papers were served, had at the time in his possession or under his control any specific property or rights of property belonging to Klingbeil. The extent of the claim is that at that time the garnishee was indebted to Klingbeil -a resident of Nebraska--on a policy of insurance upon property in that state which had been destroyed by fire, and hence that such indebtedness was attached by the service of the garnishee papers upon this foreign insurance company's agent in Milwaukee. The plaintiff in this action, by virtue of this garnishment, stepped into Klingbeil's shoes, and acquired his rights of action, but he had no better right to maintain this action in the courts of this state than Klingbeil would have had: Healey

v. Butler, 66 Wis. 9, 16; Rood on Garnishment, sec. 46. Al though the plaintiff was at the time a resident of this state, yet, for the purpose of maintaining this garnishee action against this foreign corporation, he must be regarded, pro hac vice, as a resident of Nebraska, and not of this state. But Klingbeil could not have maintained an action in any of the courts of this state against the garnishee for the cause of action stated, for the reason that our statute expressly declares that "such service can be made upon a foreign corporation only, either when it has property within the state or the cause of action arose therein, or the cause of action exists in favor of a resident of the state": Sanborn and Berryman's Annotated Statutes, sec. 2637, subd. 11; Commercial Nat. Bank v. Chicago etc. Ry. Co., 45 Wis. 172; Myer v. Liverpool etc. Ins. Co., 40 Md. 595. This brings the case within the ruling of this court in Renier v. Hurlbut, 81 Wis. 24, 29 Am. St. Rep. 850, except that the principal defendant did not appear in that case.

The general appearance of the principal defendant in the 180 main action in the case at bar did not cure the defect in the garnishment proceedings: Rood on Garnishment, sec. 232; Beaupre v. Brigham, 79 Wis. 436. It has been held by a federal court of high authority that: "A nonresident creditor cannot have his property in a debt seized in a state to which the debtor [corporation] may resort merely for the purpose of doing business through agents, when the claim arose on a contract not to be performed within the state, and the debtor does not reside therein. A debt has no situs, for the purpose of garnishment, in a state of which the plaintiff, defendant, and garnishee are all nonresidents, although the garnishee is a foreign corporation which, by general provisions of a state statute, is subject to garnishment in the state, because it assumes to do business there": Reimers v. Seatco Mfg. Co., 70 Fed. Rep. 573. To the same effect: Caledonia Ins. Co. v. Wenar (Tex. Civ. App., Jan. 25, 1896), 34 S. W. Rep. 385; Central Trust Co. v. Chattanooga etc. Ry. Co., 68 Fed. Rep. 685; Douglass v. Phenix Ins. Co., 138 N. Y. 209; 34 Am. St. Rep. 448.

By the Court. The judgment of the superior court of Milwaukee county is affirmed.

GARNISHMENT

A

JURISDICTION - CORPORATIONS. debt may be garnished in any state in which process of garnishment may be served on the debtor, or in which he might be sued and a personal judgment entered against him, based upon service of process within the state. The effect of the garnishment is not

dependent upon residence in the state of the creditor whose debt is garnished, nor is it necessary that the person or corporation garnished be a resident of the state, if he or it is within the state at the time the garnishment process is served: Lancashire Ins. Co. v. Corbetts, 165 Ill. 592; 56 Am. St. Rep. 275, and note. Compare Railroad v. Barnhill, 91 Tenn. 395; 30 Am. St. Rep. 889; German Bank v. American etc. Ins. Co., 83 Iowa, 491; 32 Am. St. Rep. 316. GARNISHMENT-SITUS OF DEBT-GARNISHMENT IN ANOTHER STATE.-It has been held that garnishment proceedings must be instituted in the state where the debt is payable and the property is to be delivered, and that a garnishment in one state of a debt due and payable in another is void: American etc. Ins. Co. v. Hettler, 37 Neb. 849; 40 Am. St. Rep. 522, and note; Illinois etc. R. R. Co. v. Smith, 70 Miss. 344; 35 Am. St. Rep. 651. On the other hand, it is stated that wherever a creditor may maintain a suit to recover his debt, it may be there attached as his property: Wyeth Hardware etc. Co. v. Lang, 127 Mo. 242; 48 Am. St. Rep. 626, and note; that although the situs of intangible personalty may be at the domicile of the creditor for the purpose of taxation or distribution, yet, for the purpose of collecting a debt, it is ambula. tory, accompanying the person of the debtor, and may be attached wherever he may be found: Neufelder v. German-American Ins. Co., 6 Wash. 336; 36 Am. St. Rep. 166; and that to this extent the laws of a state, for the purposes of attachment proceedings, may fix the situs of a debt at the domicile of the debtor: Douglass v. Phoenix Ins. Co., 138 N. Y. 209; 34 Am. St. Rep. 448, and note.

MATHWIG V. Mann.

[96 WISCONSIN, 213.]

MECHANIC'S LIENS.-BONA FIDE PURCHASERS.-A mechanic's lien holder is not a purchaser within the meaning of a statute providing that unrecorded conveyances shall be void as against subsequent purchasers in good faith and for a valuable consideration whose conveyances are first duly recorded.

MECHANICS' LIENS-MORTGAGES-PRIORITY.-Although a statute provides that a mechanic's lien shall have priority over any lien originating subsequently to the commencement of the construction of the building, such mechanic's lien is not superior to the lien of a mortgage, executed prior to, but recorded after, the commencement of such construction.

MECHANICS' LIENS-MORTGAGES-PRIORITY.—If mortgages are both executed and delivered, and the money which they are given to secure is advanced, before the commencement of the construction of a building on the mortgaged premises, liens for labor and material used in such building are subject to the liens of the mortgages, though the latter are not recorded.

Timlin & Glicksman, for the appellant.

N. Pereles & Sons, Fiebing & Killilea, J. E. Roehr, and E. F. J. Goldsmith, for the respondents.

214 CASSODAY, C. J. This action was commenced November 11, 1893, to enforce liens for labor performed and materials

furnished by the plaintiff and the defendants-other than the defendant Mann and the church corporation-in the aggregate amount of $3,747.05, and to have such liens adjudged prior and superior to the mortgages in favor of the defendant Mann. Mann answered, and, in effect, denied that his mortgages were subsequent and subordinate to such other liens, and claimed that they were prior and superior thereto.

Upon the trial before J. F. Harper, as referee, he found, as matters of fact, in effect, that the defendant Beth Hamidrosch Haggodol Congregation was at all the times mentioned a religious corporation, and on and prior to May 13, 1893, was the owner in fee simple of the lot described, being less than an acre, subject to an existing mortgage thereon of $3,000; that at that time there were situated on said premises two dwelling-houses and several sheds and outbuildings; that for the purpose of building a house of worship thereon, 215 the members of the congregation, at a meeting called for that purpose, May 13, 1893, by a resolution adopted, authorized its trustees to borrow of the defendant David S. Mann, for the purpose of building its proposed temple, $12,000 for the term of five years, and thereby authorized its president, secretary, and trustees to execute, sign, and deliver to Mann, in behalf of the corporation, as securities for the payment of said $12,000 and interest, two notes and two mortgages of $6,000 each; that May 17, 1893, the corporation, by its president, secretary, and trustees, in pursuance of such resolution, made and executed its two promissory notes, each bearing date on that day, in and by which the corporation promised to pay to the order of David S. Mann the sum of $6,000 five years after date, with interest as therein stated; that May 17, 1893, the corporation, by the same officers, in pursuance of such resolution, signed and executed, each under its corporate seal, two mortgages, each on said premises, to secure said notes, respectively; that said notes and mortgages so executed, signed, witnessed, and acknowledged were, at Milwaukee, May 17, 1893, delivered by said corporation to said Mann, who then and there accepted the same, and said Mann then and there, in consideration of the same, advanced, loaned, and passed to the credit of said corporation the whole sum of $12,000; that by an arrangement by and between the corporation and one Weil, acting as agent for Mann, it was agreed that said sum of $12,000 should be held by Weil for the benefit of, and subject to the order of, the corporation, and should be paid out upon the demand of the corporation, as such corporation might order; that upon the order of the corporation there

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