ANDREW KENTZLER, Appellant, vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Garnishee of C. S.

HARDY, Respondent.

Filed November 28, 1879.

A defect in an execution fatal to its own validity is equally fatal to any proceeding resting upon such execution. The jurisdiction of a circuit court is, except where extended by statute, confined to the county for which it was created. An execution of a circuit court cannot issue to another county until after the judgment upon which it is issued has been docketed in such county, and the execution should show upon its face the fact of its being so docketed.-[Ed.

Appeal from Milwaukee county court.

H. W. Chynoweth and W. C. Williams, for appellant.
J. W. & M. B. Cary, for respondent.

RYAN, C. J. The execution on which the proceeding of garnishment was taken is returned among the motion papers, and must be held to have been before the court below on the motion.

It is the foundation of the proceeding. The jurisdiction, so to speak, of the proceeding of garnishment rests on the execution; and a defect in the execution fatal to its own validity, is equally so to the proceeding taken upon it. Executio est finis et fructus legis. And, by the law governing courts generally, every court has inherent power to issue writs of execution on its own judgments, but not beyond its territorial jurisdiction. At the common law all process of all courts is limited to the territory over which their jurisdiction extends, and the power of any court to issue extra territorial process is not inherent in it, but comes only by express statutory grant. Sir Will. Harbert's Case, 3 Reports, 11a; Jacob's L. Dict., "Jurisdiction."

Section 8, art. 7 of the Constitution declares that the jurisdiction of the circuit courts shall extend to all matters, civil and criminal, within the state not excepted in that instrument and not prohibited by law. This is broad language, but should be construed in the light of other provisions of that instrument establishing the judicial system. Each circuit judge is to be elected by the people of his particular circuit, and shall reside within it. Section 7. The clerk of the circuit court of each county shall be elected by the people of the county. Section 12. Circuit courts shall be held in all counties organized for judicial purposes; and the judges of the circuit courts are permitted, and may be required by law, v3-24 (no. iii)

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to hold courts for each other. So commissioners may be appointed for each county with judicial powers not exceeding those of a circuit judge at chambers. And elsewhere in the constitution is a provision limiting criminal prosecutions to the county or district of the offense charged. Section 7, art. 1.

The constitution recognizes a manifest distinction between the civil jurisdiction which it vests, ex proprio vigore, in the circuit courts, and that which it does not specifically confer, but authorizes to be conferred by law on those courts. The terms used in the definition of jurisdiction, in section 8, sufficiently show the design of the constitution that the original civil jurisdiction of those courts should be largely subject to legislative control. So far as the constitution itself operates as a specific grant of territorial jurisdiction, it is manifest that it is the same in civil and criminal matters; for it is one equal grant, without discrimination between the two. And the limitation of territorial jurisdiction in criminal matters operates as a limitation of territorial jurisdiction in civil matters, so far as the constitution itself confers the latter. But, while the limitation of criminal jurisdiction is absolute, controlling all legislation on the subject, it operates to restrain only the direct grant of civil jurisdiction in the constitution itself, and leaves untouched the general definition of territorial jurisdiction in civil matters, which the circuit courts may have, and does not impart any restraint of legislative power to extend the latter to the full scope of the definition; for it applies to criminal jurisdiction positively and directly, to civil jurisdiction indirectly only. And all the clauses of the constitution, talon together, clearly limit the territorial jurisdiction of the circuit court, directly conferred by that instrument, to the county in which it is held; clearly design the circuit court in each county to be a county court, with jurisdiction, civil and criminal, limited to the county, subject to a general, perhaps unlimited, power of the legislature to extend its civil jurisdiction throughout the state.

The legislative and judicial history of the state shows that this has been, practically, from the beginning, the construction put upon the constitution by the profession and by the people. The statute of June 29, 1848, providing for the first election of judges, limits the civil jurisdiction of a circuit court to its own county, as the jurisdiction of the territorial courts had been limited; and limits its mesne process in civil actions to its proper county, permitting such process to go to

other counties only after service of some of the defendants in its own county. Various provisions followed from time to time, enlarging the power in civil proceedings, until now mesne process in transitory actions may generally issue throughout the state. But the power is strictly statutory, and a circuit court can send its process out of its own county only under some positive provision of statute. See, generally, Allen v. The State, 5 Wis. 329; State v. Pauley, 12 Wis. 537; Pereles v. Albert, Id. 666; State v. Messenore, 14 Wis. 163; Jarvis v. Barrett, Id. 591; State v. Main, 16 Wis. 398; Lain v. Burdick, 17 Wis. 92; Beach v. Sumner, 20 Wis. 274; Arnet v. Ins. Co. 22 Wis. 516; Brockway v. Carter, 25 Wis. 510; In re Eldred, 46 Wis. 530.

So it is seen that the authority of the circuit court of Dane county to issue the execution in this case to Milwaukee county must come by statute. Without statutory authority, such an execution would be mere waste paper.

The only authority of law for issuing execution from a circuit court to another county is found in section 5, c. 134, R. S. 1858, now section 2971, R. S. 1878. This provides that executions against property may be issued to the sheriff of any county where the judgment is docketed; and it cannot issue to another county where the judgment is not docketed. Smith v. Buck, 22 Wis. 577. It is true that the language of the opinion in this case is confined in terms to such executions as affecting realty, because the question there was the validity of a sale of realty. But the judgment of the court extends to all executions, because the statute makes no distinction between executions against realty and personalty, and gives one and the same authority to issue any execution, upon one and the same condition.

The docketing of a judgment in the county to which the execution may go is, therefore, a condition precedent of the authority to issue it; and it is hardly necessary to say that a statutory power upon condition precedent cannot be executed without compliance with the condition. The docketing of a judgment in another county is, so to say, jurisdictional to an execution upon it to that county; as much so as a judgment to an execution to any county. And an execution issued to one county upon a judgment docketed in another, but not in it, is very much like an execution issued without any judgment, anywhere, to support it.

An execution, to be valid, must disclose on its face the authority to issue it. Herman's Exec. § 55. An execution

not stating a judgment to support it is void. Equally so is an execution issued to another jurisdiction not stating the condition on which it may so issue. On this point Smith v. Buck, supra, properly understood, is conclusive. The case is not very well reported, and the opinion, perhaps, not quite accurate in terms. It did not appear in that case, as might be inferred from the report, that a transcript of the judgment had not been docketed in the county to which the execution issued. It only appeared that the execution did not so state, and on that ground the execution was excluded by the court below; and the precise point of the judgment is that the execution was void for not reciting the docketing of the judgment in the county to which it was issued. The fact that it was not so docketed did not otherwise appear; but, because the fact was not recited in the execution, the negative was probably assumed on the ground that quod non apparet non est.

The question in this case is clearly distinguishable, on substantial grounds, from Sabin v. Austin, 19 Wis. 421. There the execution was issued to the county in which the judgment was rendered. It recited the judgment, but not the time of docketing it, in compliance with section 8, c. 134, R. S. 1858; now section 2969, R. S. 1878. This was held to be a defect only, amendable, and rendering the execution voidable, not void. A sale under the execution was therefore upheld. But the issuing of the execution within the teritorial jurisdiction of the court was within the general power of all courts, independent of statutory authority, and section 8 went only to the form of the execution, not to the authority to issue it. Matter of form, in an act done under authority, is generally amendable; not matter on which the authority rests to confer jurisdiction of the act. And a circuit court issuing an execution defective in this particular to its own county, has before it the actual docket of the judgment by which to amend the execution; but, issuing an execution to another county, has not the docket of the judgment in that county before it-has nothing before it by which to amend the execution.

Nothing held or said in Jones v. Davis, 22 Wis. 422; Swift v. Agnes, 33 Wis: 225, or Allen v. Clark, 36 Wis. 101, appears to be in conflict with the views taken in this case.

This is not the ground on which the summons to the garnishee was quashed in the court below, or on which the order was supported by counsel in this court. But, because it is a defect jurisdictional to the whole proceeding of garnishment, it has been thought most fitting to rest the judgment

of this court upon it. The execution was void upon its face, would have been no protection to the sheriff, and could support no proceeding to collect it.

The order of the court below is affirmed.

JOHN T. KOPMEIER, Respondent, vs. COURTLAND P. LARKIN, impleaded with THOMAS O'NEIL and others, Appellant.

Filed November 28, 1878.

Where, on appeal by one defendant from an order of confirmation of mortgage sale, the order of confirmation is reversed for errors applicable to all defendants, it should be reversed as to all. Where separate appeals in the same matter are pending in the court, this court will, for the purpose of disposing of them, look into the whole record. A motion to restrain plaintiff on foreclosuie from collecting deficiency upon the judgment, after application of proceeds of sale, made before a valid confirmation of the sale, held properly dismissed as premature.—[ED.

Appeal from Milwaukee circuit court.

Rogers & Hover and Joshua Stark, for respondent.
John A. Wall and Samuel Howard, for appellant.

TAYLOR, J. This is an appeal from an order made in the same action in which the defendant Thomas O'Neil appealed from the order confirming the sale made therein, and upon which appeal this court had reversed such order for the reason stated in the opinion filed in that case. Larkin, the appellant in this case, made a motion in the court below to restrain the plaintiff from proceeding to collect any part of the deficiency upon the judgment after the application of the proceeds of the sale to the satisfaction thereof, for reasons set forth in his motion. The circuit court denied his motion, and he appeals from the order denying the same. Without passing upon the merits of the appellant's motion, we have come to the conclusion that the order of the court below should be affirmed for the reason that this motion was unnecessary and premature. The order confirming the sale is reversed by this court upon the appeal of O'Neil, upon grounds which apply as well to the appellant in this case as to O'Neil. Although none of the defendants except O'Neil appeal from the order of confirmation, and it might therefore be inferred that the other defendants are satisfied to have the sale stand, still, this court, having decided that the sale was irregular and void, upon grounds which apply with equal force to all the defendants, we were constrained to reverse such order as to all. It would seem to involve an absurdity to do