Atwood v. Roan

• Decision Date: 21 January 1914
• Citation: 145 N.W. 587,26 N.D. 622
• Parties: ATWOOD v. ROAN (TUCKER et al. Garnishees).
• Court: North Dakota Supreme Court

26 N.D. 622

145 N.W. 587

ATWOOD

v.ROAN (TUCKER et al. Garnishees).

Supreme Court of North Dakota.

Jan. 21, 1914.

Syllabus by the Court.

An affidavit for publication of summons filed under section 6840, Rev. Codes 1905, requiring the “stating the place of defendant's residence, if known to the affiant, and, if not known, stating that fact,” as a basis for substituted service, is not complied with by filing an affidavit stating “that the last-known post office address of the defendant is unknown.”

Such an affidavit for publication is not a substantial compliance with such statutory requirement, and is void.

Personal service of regular garnishment proceedings upon resident garnishee defendants was had, who defaulted, and thereby admitted liability. Subsequently attempted substituted service of summons by publication was had upon a void affidavit for publication. Judgment was entered against both defendant and garnishee by default. Held:

(a) Such judgment as to both defendant and garnishees was void as entered without jurisdiction.

(b) Judgment against the garnishee defendants cannot be entered by default until after entry of a valid judgment against the principal defendant, the garnishment proceedings not being an independent action, but wholly ancillary to the main action against the principal defendant.

(c) Garnishee defendants by defaulting in answer are not concluded from raising the question of jurisdiction over the principal defendant by motion to vacate the judgment against the principal defendant and themselves for want of jurisdiction.

(d) Such a motion to vacate is a direct and not a collateral attack upon the purported judgment.

(e) Default of garnishee defendants cannot clothe the court with jurisdiction in the main action or validate void proceedings taken against the principal defendant, and the proceedings against the garnishees fall with the failure of jurisdiction in the main action against the principal defendant.

Additional Syllabus by Editorial Staff.

As used in Rev. Codes 1905, § 6840, providing that an affidavit for service of publication shall state the place of defendant's residence, if known, and, if not known, state such fact, the word “residence” means abode, dwelling, home, or habitation, and is not synonymous with “post office address,” citing Words and Phrases, vol. 7, pp. 6151, 6161. See, also, vol. 8, p. 7788.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by T. J. Atwood against Charles Roan, defendant, and G. A. Tucker and others, garnishees. From an order denying an application by the garnishee defendants to vacate a judgment against them and the principal defendant for want of jurisdiction in the principal action, they appeal. Reversed, and both principal action and garnishment proceedings ordered dismissed.

Geo. H. Stillman, of Carrington, for appellants. Oscar J. Seiler, of Jamestown, for respondent.

GOSS, J.

In September, 1908, plaintiff, Atwood, began an action in district court against defendant Roan, and obtained personal service of a garnishment upon Tucker, Wallis, and Goyen, as garnishee defendants, within Stutsman county. Personal service was not had on defendant Roan, but after service of the garnishee defendants plaintiff filed a defective affidavit for publication of summons, reciting “that the last-known post office address of the above-named defendant, Charles Roan, is unknown,” instead of stating “the place of the defendant's residence, if known to the affiant, and, if not known, stating that fact,” as required by section 6840, R. C. 1905. The affidavit omits to state the place of defendant's residence or that his residence was unknown. Instead it does allege that his last-known post office address is unknown, the equivalent of saying that he does not know what his last post office address was. This affidavit was the basis for substituted service by publication of summons. The garnishee defendants defaulted in answering the garnishee summons. Judgment was entered March 2, 1909, against the defendant Roan for $289.35 costs and damages upon such substituted service, and judgment was also then taken for said amount against all of the garnishee defendants. On September 23, 1911, the garnishee defendants moved to vacate the judgment taken against the defendant and themselves, basing the motion upon an affidavit reciting the alleged invalidity of the service of summons by publication in the main action, and upon the entire record, contending that the entire proceeding is void, as had without jurisdiction of the defendant Roan or any subject-matter. This motion was denied by order dated February 3, 1912, and judgment thereon entered reaffirming the judgment sought to be vacated, with added costs taxed in the sum of $15. From this order and judgment defendant appeals, staying proceedings pending appeal.

Two main questions are presented: (1) Is the affidavit for publication of summons a substantial compliance with the requirements of section 6840, or, on the contrary, is it a nullity; (2) if said affidavit be fatally defective, can the garnishee defendants, in default in answer after personal service had upon them, and who offer no answer or defense on the merits as against the purported judgment taken against them by default, now urge that the judgment taken by the plaintiff against them as garnishee defendants is invalid?

[1][2] As to the first contention, it is elementary that where constructive service of summons is had the statute governing it must be strictly complied with. The attack here made on this judgment is direct and not collateral. Phelps v. McCollam, 10 N. D. 536, 88 N. W. 292; and Freeman v. Wood, 11 N. D. 1, 88 N. W. 721. So we are not confronted with any presumptions applicable as tending to support the validity of a judgment against collateral attack. The affidavit for publication speaks for itself, and it is not contended that there is any presumption that any other affidavit of publication was ever filed. The fact that the plaintiff may have known the place of the defendant's residence and still have been able to truthfully declare on his oath that defendant's “last-known post office address is unknown” to him, in itself is enough to condemn the affidavit as invalid as a substantial departure from statutory requirements.

[4] An examination of the authorities is conclusive against respondent's contention that the terms “residence” and “post office” are interchangeable and synonymous; and that the statutory requirement of a disclosure as to the fact of residence is not complied with by a showing of fact of “last-known post office address.” See the recent cases of Gibson v. Wagner (Colo.) 136 Pac. 93, and Norris v. Kelsie, 23 Colo. 555, 130 Pac. 1088. The Colorado statute required the fact to be stated in the affidavit for publication that the post office address was unknown, and the affidavit filed stated the residence as unknown. The judgment entered thereon was held void under collateral attack, following Empire Co. v. Gibson, 23 Colo. App. 344, 129 Pac. 520;Empire Co. v. Howell, 22 Colo. App. 389, 125 Pac. 592; and Empire Co. v. Coldren, 51 Colo. 115, 117 Pac. 1005, and numerous holdings cited in these opinions. See, also, Ruby v. Pierce, 74 Neb. 754, 104 N. W. 1142, where a return showing “last” usual place of residence was held not to be a compliance with the statutory requirement of service at the usual place of residence, and that the word “last” constituted an added unauthorized qualification to the return of service, and rendered the judgment entered thereon void. See, also, Wick v. Rea, 54 Wash. 424, 103 Pac. 462;Gilmore v. Lampman, 86 Minn. 493, 494, 90 N. W. 1113, 91 Am. St. Rep. 376, where it is also pointed out why the California cases cited by respondent, particularly San Diego Savings Bank v. Goodsall, 137 Cal. 420, 70 Pac. 300, and Hanson v. Graham, 82 Cal. 631, 23 Pac. 56, 7 L. R. A. 127, decisions under the provisions of sections 412, 413, of the California Code of Civil Procedure, do not apply under our practice, inasmuch as under the California practice the affidavits and order for publication are not an essential part of the record in the case. Besides, under our practice and statutes no order for the publication is required in obtaining substituted service of summons, since the change made in 1895 from the former practice and statutory procedure requiring such an order. In many jurisdictions an order for publication is a necessary step in constructive service, and decisions are found giving force to the presumption that proper evidence of nonresidence is presumed to have been exhibited or the order for service by publication could not have been obtained, and judgments void without such a presumption obtaining have been held valid. But no presumption to this effect has ever been indulged in this state, but rather the contrary was the law when an order for publication was essential. Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708, passing on the validity of a judgment entered in 1893. Manifestly, if there be any relaxing of the rule as to essentials, it would be found in such jurisdictions, instead of in those like ours, where the affidavit for publication is a necessary part of the record, and the contents of which must affirmatively establish the right to proceed further with constructive service. Though it is held in San Diego Savings Bank v. Goodsall, 137 Cal. 420, 70 Pac. 299, that the term “address” may be, for the purpose of their procedure, considered as sufficient compliance with the statute requiring the residence of a nonresident defendant to be disclosed to the court, upon an application for an order for service by publication, with direction to be made in such order for mailing of summons, that holding is not authority to the effect that an affidavit stating as here that the “last-known post office address is unknown” is the equivalent of a statement as required by our stat...