Atlas Life Ins. Co. v. Rose, Case Number: 32046

• Citation: 1946 OK 52,166 P.2d 1011,196 Okla. 592
• Decision Date: 19 February 1946
• Docket Number: Case Number: 32046
• Parties: ATLAS LIFE INSURANCE CO. v. ROSE
• Court: Supreme Court of Oklahoma

1946 OK 52

166 P.2d 1011

196 Okla. 592

ATLAS LIFE INSURANCE CO. v. ROSE

Case Number: 32046

Supreme Court of Oklahoma

Decided: February 19, 1946

Syllabus

¶0 1. GARNISHMENT-Order of garnishment in aid of execution not void because not styled "The State of Oklahoma".

Article 7 of section 19 of the Constitution of the state and 12 O. S. 1941 § 51, providing that the style of all writs and process shall be "The State of Oklahoma", have no application to an order of garnishment issued in aid of execution, and such order is not void for the reason that it is not styled "The State of Oklahoma."

2. SAME--Corporate garnishees properly required to answer interrogatories within 14 days.

12 O. S. 1941 § 1232, relative to the time allowed a corporate garnishee to answer, has no application to an order in garnishment issued in aid of execution. Such proceeding is governed by 12 O. S. 1941 § 863. This section makes no distinction between a corporate and individual garnishee and an order in garnishment issued thereunder and directed to a corporate garnishee requiring it to answer interrogatories propounded in 14 days after the issuance thereof is neither void nor voidable for the reason that it requires such interrogatories to be answered within less than 30 days from the date of the service of the order.

3. EXEMPTIONS-Record did not show judgment creditor by garnishment proceedings sought to impound current wages or earnings of judgment debtor so as to incur forfeiture of debt under statute.

Record examined: held, not to sustain contention of appellant, garnishee, that judgment creditor by garnishment proceeding sought to impound current wages or earnings for personal or professional services of judgment debtor, and trial court committed no error in refusing to apply the penal provisions of the exemption act, 31 O. S. 1941 § 4, requiring the forfeiture of judgment rendered in favor of judgment creditor in such case.

Appeal from District Court, Jackson County; John B. Wilson, Judge.

Appeal by Atlas Life Insurance Company, garnishee, from an order and judgment denying motion to vacate judgment rendered against it and in favor of B. C. Rose in garnishment proceeding. Affirmed.

Logan Stephenson, F. C. Swindell, and Q. M. Dickason, all of Tulsa, and W. C. Austin, of Altus, for plaintiff in error.

H. C. Ivester, of Sayre, and T. M. Robinson, of Altus, for defendant in error.

PER CURIAM.

¶1 This is an appeal taken by Atlas Life Insurance Company from an order denying its motion to vacate a judgment rendered against it in a garnishment proceeding.

¶2 The record discloses that on the 18th day of April, 1937, B. C. Rose, defendant in error herein, obtained a judgment in the district court of Jackson county against Paul Crosby for the sum of $360.25 plus interest and costs. Execution was thereafter issued on such judgment and returned unsatisfied. Mr. Rose, judgment creditor, thereafter filed an affidavit of garnishment in aid of execution as provided by 12 O. S. 1941 § 863, and the court clerk thereupon issued an order directed to appellant as garnishee requiring it to answer certain interrogatories propounded by Mr. Rose and attached thereto. This order with the interrogatories attached was duly served upon appellant by the sheriff of Tulsa county. Appellant failed to answer the interrogatories so propounded and judgment was thereafter rendered against it in favor of plaintiff as provided by 12 O. S. 1941 § 1179.

¶3 Appellant thereafter filed a motion to vacate the judgment on the ground that the court was without jurisdiction to render such judgment. This motion was denied.

¶4 It is first contended that the order of garnishment issued by the court clerk is void for the reason that it is not styled "The State of Oklahoma to Atlas Insurance Company." It is asserted that such order is a process within the meaning of article 7, sec. 19, of the State Constitution, and 12 O. S. 1941 § 51, which provide that all process must be styled "The State of Oklahoma"; that since the order was not so styled it is void and insufficient to confer jurisdiction upon the court either over the person of the garnishee or the fund to be impounded. We do not agree. While the order referred to in a broad and general sense undoubtedly constitutes a process, it is a process in the sense that it is an order authorized to be made and entered in the proceeding and authorized to be served upon the garnishee. It does not, however, necessarily follow that such order constitutes such process as is required to run in the name of the state under the provisions of the State Constitution and the statute, supra.

¶5 The statute does not require in proceedings of this character that a formal summons such as is required to be served upon the commencement of a civil action shall be served upon the garnishee. It simply provides that upon filing of the garnishment affidavit the court clerk shall issue an order requiring the garnishee at a time therein stated to answer interrogatories propounded by the judgment creditor and thereunto attached. The order was issued and served in the manner provided by law. Formal process is not required in such proceeding. The order issued and the service thereof upon garnishee conferred jurisdiction upon the court to render the judgment assailed.

¶6 Counsel in their brief say:

"Any procedure in a court which requires a notice, writ process, or summons to bring one into court to subject him to the jurisdiction of the court . . . is 'process,' within the purview of the Constitution, article 7, sec. 19, and the statutory provision of Title 12, sec. 51, the Statutes of 1941."

¶7 This statement is entirely too broad. It is not essential that every order or notice issued in a proceeding and served upon a party requiring his appearance before the court should run in the name of the state in order to render such process and service thereof valid, and confer jurisdiction upon the court to render judgment against the party so served. In Hall v. Price, 136 Okla. 202, 277 P. 239, we said:

"A notice as provided for in section 366, C.O.S. 1921 (12 O. S. 1941 § 1184) when served in the same manner as required for the service of a summons in a civil action, is not inoperative or void because it does not bear the style of the State of Oklahoma as provided for in article 7, sec. 19 of the Constitution, nor because the seal of the court is not attached thereto."

¶8 A notice by publication in a foreclosure proceeding in a general sense constitutes process. It is, however, not such process as is required under the Constitution to be styled "The State of Oklahoma." Burns v. Pittsburg Mortgage Inv. Co.,, 105 Okla. 150, 231 P. 887. In Vol. 34, Word and Phrases, p. 160, it is said:

"A summons issued and signed by plaintiff's attorney under a statute authorizing the commencement of an action in that manner is not process, within the meaning of the constitutional provision requiring all process to run in the name of the people. Comet Consol. Min. Co. v. Frost, 25 P. 506, 507, 15 Colo. 310. See, also, Bailey v. Williams, 6 Ore. 71, 73; Hanna v. Russell, 12 Minn. 80 (Gil. 43, 45); Brooks v. Nevada Nickel Syndicate, 53 P. 597, 599, 24 Nev. 311, Porter v. Vandercook, 11 Wis. 70, 71; Gilmer v. Bird, 15 Fla. 410, 421; Sherman v. Gundlach, 33 N. W. 549, 550, 37 Minn. 118."

¶9 Counsel in this connection also rely upon 12 O. S. 1941 § 1173. This section designates the form of a summons in garnishment. It specifically provides that such summons shall be styled...