Levine's Loan Office Inc v. Starke

• Decision Date: 18 December 1924
• Citation: 125 S.E. 683
• Parties: LEVINE'S LOAN OFFICE, Inc., et al. v. STARKE.
• Court: Virginia Supreme Court

125 S.E. 683

LEVINE'S LOAN OFFICE, Inc., et al.

v.STARKE.

Special Court of Appeals of Virginia.

Dec. 18, 1924.

Error to Law and Chancery Court of City of Norfolk.

Garnishment proceedings by Edward D. Starke, Jr., infant, by Edward D. Starke, his father and next friend, against Nathan Levine, defendant, and Levine's Loan Office, Inc., and another, garnishees. Judgment for plaintiff, and defendants bring error. Reversed, and judgment entered for defendants.

See, also, 124 S. E. 206.

Jas. G. Martin & Bro., of Norfolk, for plaintiffs in error.

Venable, Miller, Pilcher & Parsons and J. Vaughan Groner, all of Norfolk, for defendant in error.

CHRISTIAN, J. On the 5th day of September, 1915, Edward D. Starke, Jr., an infant, was injured in an automobile accident by Nathan Levine, and by his next friend sued Levine for damages for said injury, and on the 2d day of February, 1916, in the law and chancery court of Norfolk recovered a judgment against Nathan Levine for $750 with interest and costs.

Nothing was ever realized on this judgment, whereupon, on the 9th day of January, 1923, Edward D. Starke, Jr., an infant, by Edward D. Starke, his father and next friend, by his attorney, sued out an execution on his judgment against Nathan Levine, and at the same time a summons on suggestion was sued out against Levine's Loan Office, Incorporated, Mrs. Rosa Levine, and others. Nathan Levine was not made a party to the summons nor was a copy thereof served on him, but the summons against Levine's Loan Office, Incorporated, was served on him as president of said corporation.

"It is important, in the first place, properly to understand the nature and effect of the process of garnishment. Garnishment is substantially a suit by the defendant * * * in the name of the plaintiff against the garnishee. * * * In a case before the Circuit Court of the United States, Daniel, J., said: 'The proceeding must be regarded as a civil suit, and not as a process of execution to enforce a judgment already rendered. In this proceeding the parties have a day in court; an issue of fact may be tried by a jury; evidence adduced, judgment rendered, costs adjudged, and execution issued on the judgment.' Tunstall v. Worthington, Hempstead's R. 662. Drake on Attachment, § 452." Rollo v. Andes Ins. Co., 23 Grat. (64 Va.) 512, 513 (14 Am. Rep. 147).

(2] Garnishment is a statutory proceeding to enforce the lien of a writ of fieri facias on a liability of any other person than the judgment debtor, wherein the summons serves the purpose both of a writ and declaration. Code Va. §§ 6509, 6510.

As stated above, service of a copy of the summons was not had upon Levine, the judgment debtor. Section 6509 of the Code of Virginia, requiring service of the garnishment summons on the judgment debtor, or an order of publication in case he is a nonresident, is mandatory, and the trial should not proceed until the notice required by statute is given the judgment debtor.

In the law and chancery court of the city of Norfolk, on the 6th day of March, 1923, a jury was sworn to try the issue joined, whereupon, Nathan Levine and Rosa Levine were called and examined by the plaintiff as adverse witnesses. Nathan Levine testified that neither Rosa Levine nor Levine's Loan Office, Incorporated, owes witness anything, nor has either of them owed him anything since the execution on which this garnishment was based was issued. It was...