Hauer, Albert J.

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Justice Courts - Territorial Jurisdiction

Marquette University Law School

Marquette Law ReviewVolume 30Issue 2 September 1946 Article 9Justice Courts - Territorial JurisdictionAlbert J. HauerFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationAlbert J. Hauer, Justice Courts - Territorial Jurisdiction, 30 Marq. L. Rev. 145 (1946).Available at: http://scholarship.law.marquette.edu/mulr/vol30/iss2/9RECENT DECISIONSJustice Courts - Territorial Jurisdiction - The Justice orderedservice by publication against the principal defendant, a resident ofthe adjoining county, in a garnishment action and, upon its completion,gave plaintiff a default judgment against both defendants. Defendantappealed from a judgment of the Circuit Court quashing a writ ofcertiorari issued to review the judgment of the Justice. Held: TheJustice had jurisdiction over the garnishee defendent, and section304.24, Wisconsin Statutes' was construed to permit, under thesecircumstances, jurisdiction over the principal defendant to be obtainedby publication. State ex rel. Fontaine v. Sullivan, 22 N.W. (2nd) 535(Wis. 1946).2The majority opinion was based upon a construction of this statute3which authorizes service of the summons in the principal action bypublication. The Wisconsin Supreme Court then stated the effectof such an interpretation:"It is the evident statutory purpose that claims of a principaldebtor against another may be reached by garnishment in justicecourt in any county of the state where personal service or whatamounts to it may be had on such other, and that serviceupon the principal debtor may be had by publication if he is notfound there. The possibility suggested in this paragraph canbe dealt with only by the legislature. ' '4There were two dissenting opinions which stressed discrimination,situs of debts, and grounds for service by publication. The difficultylies in the fact that the publication statute for justice courts,5 recog-nizing their territorial limitation of process to the county, authorizespublication where the defendant cannot be found within that county,while in actions in a circuit court publication is not authorized unless'Wisconsin Statutes, sec. 304.24, "Summons, how served; form of. The officershall serve such summons on the garnishee personally, and return the same,with the affidavit, to the justice at the same time that he shall make return ofthe summons or warrant and state in his return the day service was made onthe garnishee. If the defendant cannot be found or is not a resident of thestate then service may be made upon him by publication as provided in sec-tions 304.12 and 304.14, with like effect... The summons to the defendant maybe substantially in the following form: ... You are hereby notified that a sum-mons and garnishee has been issued against you and your property garnisheedto satisfy the demand of ... ; now unless you shall appear ... judgment willbe rendered against you and your property sold to pay the debt . . ." sinceamended by Laws of Wis., (1945) Ch. 441, Sec. 159, but it appears that amend-ments is merely a simplification of the statute and does not change the effect.2 Plaintiff, a doctor, and principal defendant, a railroad employee, were resi-dents of Forest County. The garnishee railroad company could be servedin both Forest and adjoining Brown County, where judgment was rendered.3 Fn. 1, supra; State ex rel. Fontaine v. Sullivan, 22 N. W. (2nd) 535, (Wis-consin, 1946).4 State ex rel. Fontaine v. Sullivan, supra.5 Fn. 1, supra.MARQUETTE LAW REVIEWthe defendant cannot be found in the state.6 It is conceded that thestate legislature may, within reason, fix the venue of actions' and,in case of necessity, provide for substituted service," as long as thereis no unreasonable discrimination between litigants or classes'of liti-gants,9 on the ground that the state may provide for the adjudicationof all adversary rights of persons in property within its borders.'0Territorial limitation of jurisdiction of Justices of the Peace isbased upon public policy requiring an 'action involving small amountsto be tried in the locality where the defendant resides to protect himfrom undue expense of litigation." The presumption in most statesis that courts of limited jurisdiction have no jurisdiction until it isaffirmatively shown. 12 Other states strictly limit jurisdiction to thecounty in all cases except where the defendant has absconded 13 orcannot be found within the state.14 The question is one for the legis-lature to decide, looking both to the requirements of justice and publicdemand for speedier and less cumbersome tribunals. 5ALBERT J. HAUERInsurance-Voluntary Transfer of Possession as a Bar to RecoveryUnder Policy Covering Theft and Larceny-Ifisured, an auto dealer,allowed a prospective purchaser to take a car out for inspection,whereupon the latter converted the car to his own -use. There wasan insurance policy in effect that covered theft, larceny, robbery orpilferage, but the policy excepted coverage where the insured volun-tarily parted with title to or possession of the car, even if inducedto do so by fraud, scheme, false pretense or some trick. Held:Insured so voluntarily gave up possession of the car that in view ofthe exception in the policy he is not entitled to the coverage benefits.Boyd v. Travelers Fire Insurance Co. 22 N.W. 2nd 700 (Nebraska,1946).The main conflict in determining cases of this nature seems tolie- in the interpretation of the word possession in the policy. There6 Section 262.12, Wisconsin Statutes.'7Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, at p. 307, (1930).8 21 R.C.L. 1282, sec. 26.9 Fn. 7, supra.10 Fn. 8, supra.1"Thnmas v. Hector Const. Co., 216 Minn. 207, 12 N.W. (2nd) 769, (1943).22Gilbert v. York 111 N.Y. 544, 19 N.E. 268, '(1888). ACCORD: Collins-Dietz-Morris Co. v. Christ, 179 Okl.422, 65"P. (2d.) 967, (1936) ; Schuler-Knox v.Smith, 62 Cal. App. 86, 144 P. (2d.) 47, (1943). CONTRA: Coffee v. ChippewaFalls; 36 Wis. 121, (1874) ; Baizer v. Lasch, 28 Wis. 268, (1871).13 Meyer v. Hibler, 52 Neb. 823, 73 N.W. 289, (1897).14 Empire Supply Co. v. McCann, 127 Old. 195, 260 P. 44, (1927).25 For general discussion analyzing character, faults, and giving suggestions forJustice of the Peace Courts see: Wis. L.R. 1939: 414-22, May '39; Oreg. L. R.21: 380-4, June '42.[Vol. 30

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Justice Courts - Territorial Jurisdiction

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