Winner vs. Hoyt, imp., and others, Garnishees, etc. For the appellants there was a brief signed by E. Mariner and F. M. Hoyt, garnishees, in pro. per., and Johnson, Rietbrock & Halsey, attorneys for E. S. Hoyt, and the cause was argued orally by Mr. Johnson and Mr. Mariner. They contended, inter alia, that the service on the defendant was as clearly jurisdictional as that required to be made on the garnishee. A garnishee's liability is created by statute and can only be made to exist upon compliance with every condition imposed by the statute; and every such condition is therefore jurisdictional. Steen v. Norton, 45 Wis. 412; Falkerts v. Standish, 55 Mich. 463. Unless the failure to serve E. S. Hoyt was excused by proof that he could not, after due diligence, be found within the state, the service upon the garnishees was "void and of no effect from the beginning." R. S. sec. 2756; Wise v. Rothschild, 67 Iowa, 84; Laidlaw v. Morrow, 44 Mich. 547; O'Rourke v. C., M. & St. P. R. Co. 55 Iowa, 332; Healey v. Butler, 66 Wis. 9. Service on one of the members of the firm was insufficient, because, under our statute, service upon one partner will bind partnership property and that of the partner who was served, only when it appears that the partner who was not served could not with reasonable diligence be found within the state. R. S. sec. 2884; Blackburn v. Sweet, 38 Wis. 578; Likens v. McCormick, 39 id. 313. The fact that the officer's return was made before the expiration of the time. limited for service shows that due diligence was not used, especially in view of the further fact that after the return was made, and for several days before the time for service had expired, E. S. Hoyt was in the city, at his lodgings and at his usual place of business. See Thompson v. Morris, 2 B. Mon. 35; Hinman v. Borden, 10 Wend. 367. In the latter case the syllabus is at war with the decision. For the respondent there was a brief by Stark & Suther land, and oral argument by Mr. Stark. Winner vs. Hoyt, imp., and others, Garnishees, etc. CASSODAY, J. The issues upon the answer of the garnishee Frank M. Hoyt were fully tried by the court without a jury, and findings were made and judgment entered upon the merits in favor of the garnishee. Upon the appeal from that judgment, it was held by this court, in effect, that as the several chattel mortgages and assignments to the several creditors, transferring the entire property of the insolvent firm of E. S. Hoyt & Co., were made in pursuance of the same agreement, at substantially the same time, and all relating to the same subject matter, for the same. common purpose of having one of such mortgagees and assignees, for himself and as agent and trustee for the others, take immediate possession and convert such property into money and divide the same pro rata among such favored creditors, they must be construed together as one instrument, and, when so construed, they constituted in legal effect a general assignment, with preferences for the benefit of such favored creditors, and hence, under the statutes, were void as to other creditors, including the plaintiff. 66 Wis. 227. A specific judgment was not directed upon that reversal, because certain computations were first necessary, which were left for the trial court. Accordingly, the judgment of the trial court was reversed, and the cause was "remanded for further proceedings according to law." Page 251. The words "according to law" manifestly meant according to the opinion of the court filed upon that appeal; for, without regard to the merit or demerit of that opinion, it necessarily became the law of the case. This being so, it would seem to follow that, upon the cause being remanded, the plaintiff was entitled to judgment against the garnishee in accordance with the determinations of this court in the opinion filed. But, notwithstanding these things, it is now urged that such trial and judgment upon the merits in the county Winner vs. Hoyt, imp., and others, Garnishees, etc. court, and such determinations in this court, were each and all nullities for want of jurisdiction, resulting from the alleged failure to serve the garnishee summons and affidavit upon one of the principal debtors composing the firm of E. S. Hoyt & Co. The statute requires such service to be made "on each of the several garnishees named, in the manner provided in secs. 2636, 2637, R. S., for service of a summons in an action." Sec. 2756, R. S. Neither of the sections thus referred to provides for service by publication or otherwise upon a defendant without the state, or upon one not found and having no usual place of abode with any family or with any person within the state. Sec. 2756 does not contemplate any service of garnishment being made upon the principal defendant debtor without the state or by publication; for, after providing for service upon the garnishees, it continues: "And, except where service of the summons in the action is made without the state or by publication, also on the defendant to the action in like manner, either before, or within ten days after, service on a garnishee. When the defendant shall have appeared in the action by an attorney, such service may be made upon such attorney or upon the defendant. Unless the garnishee summons be so served upon the defendant or his attorney, or the proof of service upon the garnishee show that, after due diligence, such service cannot be made within the state, the service on the garnishee shall become void and of no effect from the beginning." Sec. 2756, R. S. The argument at the bar was devoted largely to the question whether this section makes such service upon the defendant in the principal action jurisdictional. Prior to the enactment requiring such service to be made upon the defendant in the principal action, embraced in the above stat ute, there would seem to have been no doubt but what the payment of money or delivery of property in good faith. by a garnishee, in pursuance of a valid judgment of gar Winner vs. Hoyt, imp., and others, Garnishees, etc. nishment obtained without such service, was a complete protection against any subsequent claim or suit by the defendant in the principal action. Rector v. Drury, 3 Pin. 298; Adams v. Filer, 7 Wis. 306, 73 Am. Dec. 410. As said in this last case, such proceeding was inter partes to the record, and binding upon all the property of the defendant found within the jurisdiction of the court. But, to secure such protection, it was incumbent upon the gar nishee to disclose every known defense, and, if necessary, notify the defendant in the principal action of the proceeding, and in good faith afford him an opportunity to defend his title. Ibid.; Freeman on Executions, § 418. In other words, there was to be no abuse of process. The difficulties arising out of such a state of the law, as illustrated by numerous cases which might be cited, undoubtedly led to the enactment mentioned. The manifest purpose of such enactment was not only to protect the garnishee but to conclude the defendant in the principal action by a final determination of the rights of all parties to the property or indebtedness sought to be reached by the garnishment. Accordingly, it is provided that the defendant in the principal action may in all cases defend against the garnishee proceedings upon any of the grounds authorized, and so the garnishee may, at his option, defend the principal action. Sec. 2765, R. S. But sec. 2756, R. S., does not require such service in garnishment to be made upon the defendant in the principal action in all cases. On the contrary, it expressly provides, in effect, that such service need not be made in such garnishment whenever the service of the summons in the principal action is made without the state or by publication. In such actions against nonresident defendants so served, further service is dispensed with, and it is left as before the enactment. Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has Winner vs. Hoyt, imp., and others, Garnishees, etc. been upheld mainly upon the ground that such proceeding is substantially in rem to subject specific property or credits to the payment of a specific debt. Moore v. Wayne Circuit Judge, 55 Mich. 87. In the case last cited the defendant in the principal action was a nonresident, but the garnishee papers were personally served upon him without the state, and it was held, in effect, that the trial court had jurisdiction as to property and credits in the hands of the garnishee. In Cooper v. Reynolds, 10 Wall. 317, Mr. Justice MILLER, speaking for the court upon this question, observed: "So, also, while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, etc. So the writ of garnishment, or attachment, or other form of service on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court." To repeat what was said in another case: "As in a creditor's bill, so in supplementary proceedings, the commencement of them by the service of process or notice operates as an equitable levy and creates a lien in equity upon the effects of the judgment debtor; and every species of property belonging to him may be reached and applied. to the satisfaction of his debts." In re Milburn, 59 Wis. 34. So the service of garnishee papers upon the garnishee operates as an equitable levy upon such of the debtor's prop erty and credits as were at the time of such service in the hands of the garnishee. Sec. 2756 provides, in effect, that when the defendant has appeared in the principal action by an attorney, then such |