James E. Colliflower & Co. v. McCallum-Sauber Co.

• Decision Date: 30 January 1933
• Docket Number: No. 5641.,5641.
• Citation: 63 F.2d 366
• Parties: JAMES E. COLLIFLOWER & CO., Inc., v. McCALLUM-SAUBER CO. et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 F.2d 366 (1933)

JAMES E. COLLIFLOWER & CO., Inc., v. McCALLUM-SAUBER CO. et al.

No. 5641.

Court of Appeals of the District of Columbia.

Argued January 11, 1933.

Decided January 30, 1933.

Leo P. Harlow and Marshall H. Lynn, both of Washington, D. C., for appellant.

Milton Conn and Alvin Newmyer, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associated Justices.

MARTIN, Chief Justice.

This appeal challenges an order of the lower court vacating and setting aside a judgment theretofore entered by it against a garnishee in attachment.

The record discloses that on April 3, 1931, appellant, James E. Colliflower & Co., Inc., commenced an action in the lower court against Beck & Guckert Floral Company, Inc., as defendant. In the declaration appellant alleged that theretofore it had recovered a judgment against defendant in the corporation court of the city of Alexandria, state of Virginia, in the sum of $1,950; that the judgment remained in full force and effect, unsatisfied in whole or in part, unreversed, and not superseded, and prayed judgment for said sum against defendant, together with interest and costs. Appellant at the same time filed an affidavit of attachment, wherein it alleged that the defendant was a foreign corporation.

A writ of summons was issued for the defendant on the same day, and was duly returned indorsed "not found." Thereupon an order for service of process upon the defendant by publication was entered by the court, and publication was duly made and proven in the case.

Upon the day when the declaration was filed, a writ of garnishment was issued attaching all credits and property of the defendant in the hands of McCallum-Sauber Company, and on the same day the writ was returned with the indorsement that it had been regularly served upon the garnishee.

On July 31, 1931, the defendant and the garnishee both being in default for answer or appearance, the lower court entered a judgment in the case in favor of appellant as plaintiff and against the garnishee in the sum of $1,950. But no judgment was entered against the defendant, Beck & Guckert Floral Company, Inc.

On January 5, 1932, the garnishee, McCallum-Sauber Company, filed a motion to vacate and set aside the judgment entered against it, alleging that the writ of garnishment was not in fact served upon the company; that the company had no notice of the garnishment, and that the judgment was void upon these grounds and upon other grounds apparent on the face of the record. Testimony was thereupon submitted to the court by affidavit relating to the claim that the writ of garnishment had not in fact been served upon garnishee, and that the garnishee had no notice of the garnishment or the judgment thereon.

The court sustained the motion to vacate the judgment, and it was so ordered. The garnishee was granted leave to file an answer nunc pro tunc, as of April 4, 1931, the date of the alleged service of the interrogatories and writ of attachment upon it. Whereupon the garnishee filed an answer denying that it had in its possession any goods, chattels, or credits of the defendant. This order vacating the judgment is now before the court upon appeal.

In our opinion, the judgment rendered against the garnishee by the lower court on July 31, 1931, was irregular and void, inasmuch as no judgment had been rendered against the defendant, Beck & Guckert Floral Company, in this case. This procedure is contrary to the requirements of sections 463 and 464 of the Code of Laws of the District of Columbia 1924 (D. C. Code 1929, T. 24, §§ 139, 140). The sections read as follows:

Section 463: "Judgments. — If the defendant in the action has been served with process, final judgment shall not be rendered against the garnishee until the action against the defendant is determined. If in such action judgment is rendered for the defendant, the garnishee shall be discharged and shall recover his costs, and the property attached or its proceeds shall be restored to the garnishee or to the defendant, as the case may require."

Section 464: "If in such action judgment is rendered in favor of the plaintiff against the defendant, and it shall appear that the plaintiff is entitled to a judgment of condemnation of the property attached, the court shall proceed to enter such judgment in the attachment as in the following sections (sections 141 to 152, inclusive, of this title) directed."

It is abundantly established by the authorities that a judgment against the principal defendant in an attachment case is essential to the entry of a valid judgment against the garnishee. In Laselle v. Leland (C. C. A.) 298 F. 275, 278, it is said: "The law permits judgment against the garnishee, and condemning the property attached, only upon the plaintiff recovering against the main defendant."

In 28 C. J. 319, § 482, it is said: "It follows from the ancillary character of garnishment proceedings that ordinarily a valid judgment against the principal defendant is essential to the validity of a final judgment against the garnishee." (See citations.)

In 12 R. C. L., p. 823, § 56, it is said: "A valid judgment against the principal defendant is essential to authorize a judgment against the garnishee."

In Wade on Attachment, vol. 2, p. 136, it is said: "But the jurisdiction which the court has to render judgment against the garnishee is not complete, even where the service upon him is in...