COPELAND TOWNSEND, Respondent, vs. WILLIAM E. SMITH,

Appellant.

Filed November 28, 1879.

1. Where defendant in a civil action has been induced by plaintiff's fraudulent representations to come within the jurisdiction of the court, the summons then served upon him will be set aside, although the design of the representations was to obtain his arrest upon a criminal charge, and the institution of the civil action was an after-thought.

2. It seems that in such a case the action should be dismissed, even after defendant has made a voluntary general appearance therein; but whether there was such an appearance in this case is not determined.-[STATE REP.

Appeal from Waukesha circuit court.

Rogers & Haver and Joshua Stark, for respondent.
Johnson, Reitbrock & Halsey, for appellant.

The plaintiff is the owner of a hotel in Oconomowoc, in this state, and the defendant is a resident of Chicago, and the publisher of a newspaper in that city called The Hotel World. The defendant published an article in his said newspaper derogatory to the character of the plaintiff, and severely censuring him for the manner in which he conducted his hotel business. Soon after the publication of such article the plaintiff, by means of the false and fraudulent pretences that he desired to advertise his hotel for sale in The Hotel World, and also desired the defendant to examine the property, and that he would pay the defendant's expenses if the latter would visit Oconomowoc for that purpose, induced the defendant to go from Chicago to Milwaukee. As soon as he arrived at Milwaukee he was arrested by virtue of a warrant issued on complaint of the plaintiff in behalf of the state, charging him with the offence of libel committed by the publication of the aforesaid article.

While in the custody of the officer on the criminal charge the plaintiff caused the summons in this action to be served on the defendant.

The false and fraudulent pretences aforesaid were made by the plaintiff for the sole purpose of getting the defendant within the jurisdiction of the court so that process might be served upon him.

On affidavits, showing the foregoing facts, the attorneys for the defendant, who appeared specially for the purposes of the motion alone, obtained an order on the plaintiff to show cause why the service of the summons should not be set aside, "and why said defendant should not have such other and further

relief as to the court shall seem meet and just, and the costs of this motion." The order contains a stay of proceedings.

On the hearing of the motion an affidavit of the plaintiff was read in opposition thereto, in which he denies that he perpetrated the fraud and trick charged to enable him to get service of the summons on the defendant in this state, and alleges that the service of the summons was first suggested to him after the defendant had been arrested on criminal process. The affidavit contains no other defence to the motion, and no excuse for or palliation of the fraud perpetrated upon the defendant.

The circuit court denied the motion ou the ground that "the defendant has procured a stay of proceedings herein, and that by such stay he has entered an appearance and waived all defects in the original service of the summons."

The defendant has appealed from the order denying the motion to set aside such service.

LYON, J. If a person is induced by false representations to come within the jurisdiction of a court for the purpose of obtaining service of process upon him, and process in an action brought against him in such court is there served, it is an abuse of legal process, and the fraud being shown. the court will, on motion, set aside the service. This rule is elementary, and has been uniformly enforced in numerous cases both in this country and England. The principle of the rule seems to be that "a valid and lawful act cannot be accomplished by any unlawful means; and whenever such unlawful means are resorted to the law will interpose and afford some suitable remedy, according to the nature of the case, to restore the party injured by these unlawful means to his rights." Per Shaw, C. J., in Illsley v. Nichols, 12 Pick. (270,) 276.

In the present case the plaintiff inveigled the defendant, by artifice and falsehood, to come within the jurisdiction of the court in which the action was brought. The means by which the service of the summons was obtained being fraudulent, were unlawful. The remedy which the law affords in such a case is to set aside the process.

This remedy is not given upon the ground that, by reason of the fraud, the court did not get jurisdiction of the person of the defendant by the service, but upon the ground that the court will not excrcise its jurisdiction in favor of the plaintiff, who has obtained service of his summons by unlawful means. When that fact is made to appear-especially

if the defendant has been guilty of no laches- the court should vindicate the integrity of its process by setting aside the service and turning the plaintiff out of court as a punishment for his gross fraud.

As already observed, courts have uniformly so proceeded in such cases, and we do not find that any court has ever stopped to inquire, under such circumstances, whether the appearance of the defendant is general or special. Such a case is entirely unlike one in which there has been a failure of proper service of process, for there the failure affects only the defendant, while here the fraud affects the integrity of the process of the court. Surely a general appearance to the action ought not to bar the court from vindicating the integrity of its own process, and we have seen no case which gives that effect to a general appearance.

We are of the opinion, therefore, that the ground upon which the learned circuit judge denied the motion to set aside the service of the summons is untenable, even though the defendant has appeared generally, which we greatly doubt. It is unnecessary, however, to determine the character of the appearance.

It was suggested, but scarcely argued, by the learned counsel for the plaintiff, that because his client committed the fraud for the sole purpose of getting the defendant within this state, so that he might be arrested on criminal processthis action being the result of an after-thought the service of the summons should be upheld.

The suggestion is hardly worthy of notice. The defendant was within the jurisdiction of the court by means of the fraud of the plaintiff, and no act of his, which that fraud enabled him to accomplish, can be allowed to stand, whether such act was predetermined or not. The court will not permit him to utilize his fraud for any purpose. In Ex parte Wilson, 1 Atk. 152, Lord Chancellor Hardwicke said: "Even at law, where there is an irregular arrest, and an advantage is taken of the irregularity to charge him in custody at the suit of another person, the courts of law will discharge him from both."

We conclude that the court below should have granted the motion.

In addition to those above cited the following are some of the cases which it is believed sustain the views above expressed: Snelling v. Watrous, 2 Paige, 314; Carpenter v. Spooner, 2 Sand. 717; Williams v. Bacon, 1 Wend. 636;

Clark v. Wilson, 41 Barb. 45; Goupil v. Simonson, 3 Abb. Pr. 475; Bulkley v. Bulkley, 6 Abb. Pr. 307; Dunlap v. Cody, 31 Iowa, 260; Whetstone v. Whetstone, Id. 276; Wanzer v. Bright, 52 Ill. 35; Benninghoff v. Oswell, 37 How. Pr. 235; Wells v. Gurney, 8 Barn. & Cress. 769; Stein v. Valkenhuysen, Ellis, Bl. & Ellis, 65; Lutting v. Benin, 11 Mod. 50.

Order reversed, and cause remanded with directions to the circuit court to vacate and set aside the service of the sum

mons.

MARIE KATHARINA SCHNUR vs. ADAM SCHNUR and another.

Filed November 28, 1879.

1. Money was paid into court by a defendant to keep good an alleged tender, and judgment was ordered for plaintiff on the ground that no sufficient tender had been made; but such judgment was never entered, because the controversy was settled by the parties. On motion of said defendant, (with due notice to all parties,) and on proof that he was entitled to such moneys as against the plaintiff, the court made an order requiring its former clerk, by whom such money had been received, and not paid over to his successor, to pay the same to the moving party. Held, no error. Schnur v. Hickcox, 45 Wis. 200.

2. Whether the court can enforce its order by attaching its former clerk, not considered.-[STATE REP.

Appeal from Milwaukee county court.

In the matter of the appeal of James Hickcox from an order in said cause.

J. V. V. Platto, for appellant.

Murphy & Goodwin, for respondent.

A sum of money was paid into court in said action by the defendant Adam Schnur, the respondent in this appeal, to keep good a tender thereof alleged to have been made by him to the plaintiff in satisfaction of the contract in suit. The money was paid to James Hickcox, the present appellant, who was then clerk of the circuit court for Milwaukee county, in which the action was pending.

The cause was tried, and the trial resulted in a finding that no sufficient tender had been made. Judgment for the plaintiff was ordered, but never entered, the controversy having been settled by the parties.

On due notice to all parties interested the respondent moved the circuit court for an order requiring Mr. Hickcox to pay over the money to him, and showed that he is entitled to the money, and that the same is in the hands of Mr. Hickcox. The court so ordered, and this appeal is from such order. LYON, J. Schnur v. Hickcox, 45 Wis. 200, was an action. on the official bond of the appellant, as clerk of the circuit

court, to recover the money mentioned in the order from which this appeal was taken. The money having been paid into court for the plaintiff, it was held, in substance, that there could be no recovery in that action until the court should, upon proper proceedings, adjudicate that it belonged to the respondent Adam Schnur instead of the plaintiff. We also indicated the proper practice to obtain an adjudication in that behalf, and the practice thus indicated has been strictly pursued by the respondent. Moreover, the motion papers show that he is entitled to the money, and that it is in the hands of the appellant. Under these circumstances no good reason is perceived for disturbing the order. Whether the court has authority to attach the appellant for non-payment of the money, is a question which was not then and is not now before us, and we intimate no opinion upon it. Order affirmed.

ISAAC KLAUBER, Assignee, etc., Respondent, vs. WILLIAM CHARLTON, Appellant.

Filed November 28, 1879.

1. Under the statutes of this state relating to voluntary assignments for the benefit of creditors, sureties upon the assignee's bond are not responsible or sufficient unless they are freeholders in this state.

2. If the proof made by the sureties, purporting to be under oath, at the time of the taking of the bond, shows that they are sufficient within the meaning of the statute, and the proper officer approved of them, the assignment cannot be avoided by contradicting the affidavits of the sureties, nor by proof that the oath was not in fact administered, unless it be shown that the assignment was made for the purpose of hindering, delaying or defrauding creditors.-[STATE REP.

Appeal from circuit court, Dane county.

H. M. & H. A. Lewis and Sloan, Stevens & Morris, for respondent.

Vilas & Bryant, for appellant.

TAYLOR, J. This is an action of replevin. The plaintiff claims the property as assignee of Bernard Kohner, by virtue of an assignment made under the provisions of chapter 63, Rev. St. 1858, as amended by chapter 64, Laws 1858. The defendant, as sheriff of Dane county, claims the goods by virtue of a levy thereon made by him upon two executions issued out of the circuit court of said county upon two judgments rendered in favor of the plaintiff in two separate actions against said Bernard Kohner. The assignment was executed and delivered, and the assignee took possession of the goods before the executions were levied. The sheriff having taken possession of the goods by virtue of his levy, the assignee