Atwood v. Tucker
| Decision Date | 21 January 1914 |
| Court | North Dakota Supreme Court |
From an order of the District Court of Stutsman County, Coffey J., denying an application by garnishee defendants to vacate a judgment taken against them and the principal defendant for want of jurisdiction in the principal action, garnishee defendants appeal.
Reversed and both principal action and garnishment proceedings ordered dismissed for failure of jurisdiction in the principal action prior to attempted entry of judgment therein.
Order and judgment set aside, and all proceedings dismissed.
Geo. A Stillman, for appellants.
The trial court was without jurisdiction to enter the judgment for want of a sufficient affidavit for service of the summons by publication. The residence of the defendant--whether known or otherwise--is not mentioned. The affidavit recites that "the last known postoffice address of defendant is unknown." Rev. Codes, 1905 § 6840; Brown, Jurisdiction, 2d ed. § 51, p. 221; Pomeroy v. Betts, 31 Mo. 419; Lonkey v. Keyes Silver Min. Co. 21 Nev. 312, 17 L.R.A. 351, 31 P. 57; New York Baptist Union v. Atwell, 95 Mich. 239, 54 N.W. 760; Fetes v. Volmer, 28 N.Y. S. R. 317, 8 N.Y.S. 294; Bothell v. Hoellwarth, 10 S.D. 491, 74 N.Y. 231.
The judgment against the defendant is a nullity. Williams v. Fairmount School Dist. 21 N.D. 198, 129 N.W. 1027.
No judgment can be given or entered against a garnishee until after a valid judgment is given and entered against the defendant in the main action. 20 Cyc. 978-91, inclusive; 9 Enc. Pl. & Pr. 810; 3 Wade, Attachm. §§ 327, et seq; 2 Sutherland, Code Pl. § 2791; Hinds v. Miller, 52 Miss. 845; Frisk v. Reigelman, 75 Wis. 499, 17 Am. St. Rep. 198, 43 N.W. 1117, 44 N.W. 766; Shoemaker v. Pace, Tex. Civ. App. , 41 S.W. 498; St. Louis, I. M. & S. R. Co. v. McDermitt, 91 Ark. 112, 120 S.W. 831; Matheney v. Earl, 75 Ind. 531; Iron Cliffs Co. v. Lahais, 52 Mich. 394, 18 N.W. 121; Streissguth v. Reigelman, 75 Wis. 212, 43 N.W. 1116; State v. Barry, 14 N.D. 316, 103 N.W. 637; Jordan v. Davis, 10 Okla. 329, 61 P. 1063; Traders' Mut. L. Ins. Co. v. Humphrey, 207 Ill. 540, 69 N.E. 375.
Oscar J. Seiler and A. W. Aylmer, for respondent.
The trial court was correct in refusing to set aside the judgment, because the remedy of appellant was by appeal, and this appeal is too late. Rood, Garnishment, § 390; Hardin v. Hardin, 26 S.D. 601, 129 N.W. 111; 23 Cyc. 1145.
Defects in proof of service cannot be attacked collaterally. Hanson v. Franklin, 19 N.D. 259, 123 N.W. 386; Ricketson v. Richardson, 26 Cal. 149.
The affidavit for the service of the summons by publication was sufficient. Hanson v. Graham, 82 Cal. 631, 7 L.R.A. 127, 23 P. 36.
A person may have a residence separate from his domicil. Savage v. Scott, 45 Iowa 130; Hanson v. Graham, supra.
The action in district court was an action in rem, and its jurisdiction was complete by reason of the garnishment. Burcell v. Golstein, 23 N.D. 257, 136 N.W. 245; Rood, Garnishment, § 5.
The property or debt garnished has a situs distinct from the debtor's domicil, for the purpose of attachment or garnishment. Harvey v. Great Northern R. Co. 50 Minn. 405, 17 L.R.A. 84, 52 N.W. 905; Rood, Garnishment, §§ 233, 241; Note to case of Goodwin v. Claytor, 67 L.R.A. 209; Steer v. Dow, 75 N.H. 95, 20 L.R.A.(N.S.) 263, 71 A. 217; A. B. Baxter & Co. v. Andrews, 131 Ga. 120, 20 L.R.A. (N.S.) 268, 62 S.E. 42; McShane v. Knox, 103 Minn. 268, 20 L.R.A.(N.S.) 271, 114 N.W. 955; Holford v. Trewella, 36 Wash. 654, 79 P. 308.
To say that debts due nonresidents could not be garnished would defeat the statute. Rood, Garnishment, § 384, note 14.
GOSS, J. BURKE, J., did not participate.
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 Goyden, 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 postoffice 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 § 6840, Rev. Codes 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 postoffice address is unknown, the equivalent of saying that he does not know what his last postoffice 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 question are presented: (1) Is the affidavit for publication of summons a substantial compliance with the requirements of § 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?
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 postoffice address is unknown" to him, in itself, is enough to condemn the affidavit as invalid as a substantial departure from statutory requirements. An examination of the authorities is conclusive against respondent's contention that the terms "residence" and "postoffice" 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 postoffice address." See the recent cases of Gibson v. Wagner, 25 Colo.App. 129, 136 P. 93, and Norris v. Kelsey, 23 Colo.App. 555, 130 P. 1088. The Colorado statute required the fact to be stated in the affidavit for publication that the postoffice address was unknown, and the affidavit filed stated the residence as unknown. The judgment entered thereon was held void under collateral attack, following Empire Ranch & Cattle Co. v. Gibson, 23 Colo.App. 344, 129 P. 520; Empire Ranch & Cattle Co. v. Howell, 22 Colo.App. 389, 125 P. 592; and Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 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 P. 462; Gilmore v. Lampman, 86 Minn. 493, 91 Am. St. Rep. 376, 90 N.W. 1113, at page 494, where it is also pointed out why the California cases cited by respondent, particularly San Diego Sav. Bank v. Goodsell, 137 Cal. 420, 70 P. 299, and Hanson v. Graham, 82 Cal. 631, 7 L.R.A. 127, 23 P. 56, decisions under the provisions of §§ 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...
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