Bristol v. Brent

• Decision Date: 20 April 1909
• Docket Number: 1977
• Citation: 36 Utah 108,103 P. 1076
• Parties: BRISTOL v. BRENT (ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Garnishee)
• Court: Utah Supreme Court

103 P. 1076

36 Utah 108

BRISTOL v. BRENT (ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Garnishee)

No. 1977

Supreme Court of Utah

April 20, 1909

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by G. E. Bristol against Noah Brent and Atchison, Topeka &amp Santa Fe Railway Company, garnishee.

Judgment discharging the garnishee. Plaintiff appeals.

REMANDED, with directions to set aside order discharging the garnishee, with permission to amend the return if amendable and, if not, to dismiss.

E. A. Walton for appellant.

Goodwin & Van Pelt for respondent garnishee.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This case was before us on a motion to dismiss the appeal. ( Bristol v. Brent, 35 Utah 213, 99 P. 1000.) The motion to dismiss was denied, and the parties at the last term of this court submitted the questions arising on the appeal. The appeal is from an order or judgment discharging the garnishee, and the facts upon which the order was based are sufficiently stated by Mr. Chief Justice Straup in his opinion on the motion to dismiss the appeal, to which reference is made.

The garnishee alone appears in the action. Counsel for garnishee, stating their contention in their own language, insist "that the want of jurisdiction both of the person of the garnishee and of the property attempted to be held appears upon the face of this record cannot be questioned." If this be so, the district court was without authority to proceed further with the case, and hence whatever errors it committed in the proceedings leading up to the discharge of the garnishee are neither material nor prejudicial to appellant. Did the district court acquire jurisdiction of either the person of the garnishee or of the debt owing by it to the principal defendant, Noah Brent? As appears from the former opinion, appellant obtained a writ of attachment against Brent upon the sole ground that Brent was a nonresident of this state. The writ of attachment, as appears from the return of the officer, was never served; nor was there any tangible property attached. In connection with the writ of attachment, appellant also obtained a writ of garnishment, which, it is claimed, was properly served on the garnishee, and by virtue of this service it is contended the debt owing by the garnishee to Brent was attached, and the court thus acquired jurisdiction of the res. The whole question hinges upon whether the court thus acquired jurisdiction of the res.

The return of the officer showing service of the writ of garnishment, and this is the only service the officer made is as follows:

"State of Utah, County of Salt Lake--ss: I hereby certify and return that I received the within and hereunto annexed writ of attachment on the 20th day of October, A. D. 1907, and by virtue of the same on the 20th day of October, A. D. 1907, I served a garnishment on the Atchison, Topeka and Santa Fe Railway Company, per C. F. Warren, Gen'l Agt., in the county and city of Salt Lake, state of Utah. At the same time I paid the garnishee fee of $ 2.00 and took receipt therefor which receipt is hereto attached and made a part of this return. Life of said writ having expired I now return same without further service by me. Dated Oct. 18, 1907. [Duly signed by sheriff.]"

Was this return of service of the writ of garnishment sufficient to invest the court with jurisdiction of the res so as to authorize it to proceed with the case? Rood on Garnishment, section 277, states the rule which is almost universally applied by the courts in the following language:

"All that has been said of the service of the writ applies with equal force to the return, for the return is the officer's report of his doings under the writ. It should be indorsed upon the writ, or made upon a paper annexed thereto; for the writ and return constitute essentially one record, and must go together. Whatever the statute requires to be done in the service of the writ the return must show to have been done; and, unless it shows that due service has been made, the court has before it no proper evidence upon which to base any further proceedings. Its absence cannot be cured by the garnishee's signed admission of due service."

This return constitutes the evidence, and is the only proper evidence of service. The service, in order to invest the court with jurisdiction, must comply with the statute. Under our statutes debts or credits may be attached in two ways. By subdivision 6, section 3073, Comp. Laws 1907, it may be done by leaving with the person owing the debt a copy of the writ of attachment with a notice to such person that the debt has been attached. By following this method, however, the plaintiff in the action accomplishes nothing except to prevent the person who owes the debt or is in possession of property from disposing of it, or from surrendering possession thereof. This is made clear by sections 3074 and 3075. If the plaintiff desires to make the person owing the debt a party to the proceedings--that is, if it is desired to bring him into court so as to compel him to disclose by a proper answer--then the plaintiff may in connection with the writ of attachment, under section 3090, proceed and have a writ of garnishment issued and served upon the debtor of the defendant, and in that way not only attach the debt, but may also require such debtor to answer as garnishee, and thus place the debt into the custody of law. By section 3093 it is provided that a writ of garnishment must be served "in the same manner as a summons in the action." Section 2948 provides "the summons must be served by delivering a copy thereof," etc. Section 3094, among other things, provides that: "The return of the latter writ (garnishment) showing due service on the person therein named as garnishee shall give the court jurisdiction to proceed against such garnishee as hereinafter provided." The writ of garnishment, therefore, must be served by delivering a copy thereof to the garnishee. The return of the officer who made the service of the writ of garnishment in this case does, therefore, not show a compliance with the statute. As we have seen from the quotation from Rood on Garnishment, supra, the statutory requirements with regard to service must be complied with in order to make a valid service. There is no "presumption that the officer has done his duty." (Rood on Garnishment, section 279.) Upon the face of the officer's return, therefore, it affirmatively appears that the writ of attachment was not served at all, while in disclosing the manner of service it does not appear that a copy of the writ of garnishment was delivered to the garnishee as required by our statute, and hence it affirmatively appears upon the face of the return that the writ was not served as provided by statute. The return, therefore, did not disclose "due service," which, it is provided by section 3094, supra, "shall give the court jurisdiction."

It is contended by counsel for appellant that the objections to the service and jurisdiction come too late, since they were not interposed until after the garnishee had appeared and answered to the writ of garnishment, and had by its answer admitted that it was indebted to the defendant; that by its appearance and answer the garnishee waived all defects, if any, in the service of the writ of garnishment, and thus conferred jurisdiction, not only over its person, but of the res as well. Upon this question the authorities are apparently in hopeless conflict. We have already held that the garnishee may not waive jurisdictional defects by a general appearance; that is, he cannot confer jurisdiction over the res by a voluntary appearance. (Cole v. Utah Sugar Co., 35 Utah 148, 99 P. 681.) Respecting the effect of a general appearance by the garnishee the rule is stated in 20 Cyc. 1057, in the following language "In the majority of jurisdictions the rule is laid down that a voluntary general appearance on the part of the garnishee waives all irregularities in garnishment proceedings, such as defects in the writ or summons, or in its service, at least in so far as the rights of the garnishee are thereby affected." (Italics ours.) In support of this text cases from twenty-two states are cited. We have carefully examined cases from every one of the jurisdictions, and have also examined others not referred to in Cyc. Many of the cases support the text not italicized as given in Cyc. in full, while a few of those cited support only that portion of the text which has been italicized. It is not practical to enter upon a review of all of the cases cited. We remark, however, that from a very careful examination of them we have become convinced that nearly all courts that have taken the pains to examine into the subject thoroughly refuse to enforce the doctrine of waiver except to the extent that the garnishee can waive such defects in process and service only as affect him personally, and cannot by any act of his either waive the rights of the defendant or confer jurisdiction over the res. The decided cases also disclose that the courts which extend the doctrine of waiver beyond this almost without an exception do so upon the general principle, namely, that a party by a general appearance waives defects in process and in the service thereof. If nothing were involved in attachment by garnishment except to obtain jurisdiction over the person of the garnishee, the doctrine announced by those courts would no doubt be sound. In attachment proceedings against a non-resident defendant where personal service on him is lacking it is elementary that the court must obtain jurisdiction of the property of the defendant. This in an ordinary attachment is obtained by a seizure of it by...