Bristol v. Brent

• Decision Date: 20 January 1909
• Docket Number: 1977
• Citation: 99 P. 1000,35 Utah 213
• Parties: DR. G. E. BRISTOL, Appellant, v. NOAH BRENT, Respondent, ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Respondent
• Court: Utah Supreme Court

99 P. 1000

35 Utah 213

DR. G. E. BRISTOL, Appellant, v. NOAH BRENT, Respondent, ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Respondent

No. 1977

Supreme Court of Utah

January 20, 1909

APPEAL from District Court, Salt Lake County. Hon. M. L. Ritchie Judge.

Action by G. E. Bristol against Noah Brent, and another as garnishee. From an order dismissing the garnishment proceedings, plaintiff appealed. On motion to dismiss appeal.

MOTION DENIED.

E. A Walton for appellant.

Messrs Goodwin & Van Pelt for respondent.

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

OPINION

STRAUP, C. J.

Bristol brought an action in the district court of Salt Lake county against Brent to recover money alleged to be due on a promissory note. The complaint was filed in September, 1907. At the time of the filing of the complaint the plaintiff caused a writ of attachment to be issued, and a writ of garnishment to be served in Salt Lake county on the Atchison, Topeka & Santa Fe Railway Company. The writ of garnishment showing an admission of the garnishee of an indebtedness to Brent in the sum of $ 141.46 was returned and filed in December, 1907. On February 11th following, the garnishee served and filed a motion of discharge and release, and to dismiss the garnishment proceedings. Upon a hearing the motion was granted on the 7th of March, 1908, and the garnishee discharged and released from all liability in the premises. Thereafter, and on the 11th day of March, 1908, Brent filed a demurrer to the complaint, and, on the 10th day of April, 1908, an answer. No trial has yet been had, and no judgment has been rendered in the main action. On September 4, 1908, the plaintiff prosecuted an appeal to this court from the order discharging and releasing the garnishee and dismissing the garnishment proceedings. The garnishee filed a motion in this court to dismiss the appeal, on the ground that the order appealed from is not a final judgment and that the appeal is taken prematurely. By agreement of counsel the motion to dismiss the appeal is the only question presented and submitted at this time.

The Constitution (article 8, section 9) provides that: "From all final judgments of the district court there shall be a right of appeal to the Supreme Court." The statute (section 3113, Comp. Laws 1907) provides that: "Motions for a new trial may be made in the same manner and shall be allowed for the same grounds in garnishment proceedings as in other trials; and appeals may be taken and prosecuted from any final judgment or order in such proceedings as in other civil cases." The statute, of course, cannot enlarge the Constitution. To be appealable, the ruling in question must be a final judgment.

In the case of Honerine, etc., Co. v. Tallerday, etc., Co., 30 Utah 449, 85 P. 626, and in the case of Winnovich v. Emery, 33 Utah 345, 93 P. 988, we had occasion to consider the question of the finality of a judgment. In the latter case Mr. Justice Frick said: "The test of finality for the purpose of an appeal, therefore, is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment."

The order of the court ended the controversy between the plaintiff and the garnishee, and put those proceedings and the parties thereto out of court. The plaintiff is entitled at some time, and on some appeal, to have the ruling reviewed. No continued or subsequent proceedings in the district court between the plaintiff and Brent in the main action could in any wise affect the garnishee in the premises. The purpose of attachment and garnishment proceedings is to seize and hold property pending litigation in the action out of which the writs issued. When the garnishee and the garnishment proceedings were discharged the garnishment lien was also discharged. If the plaintiff cannot have the ruling reviewed and the status quo of the property preserved until he obtains a final judgment against Brent, his litigation may be fruitless; for, in the meantime, the seized property may have been disposed of. If the ruling in question is not a final judgment and appealable now, it is also not a final judgment and not appealable when the plaintiff obtains a final judgment in the main action against Brent. In order, therefore, that the plaintiff may have the ruling reviewed, he would be obliged to take an appeal from a judgment in the main action which was rendered in his favor and concerning which he has no complaint to make. Very true, attachment and garnishment proceedings in this state are not independent proceedings, but are merely in aid of an action commenced concurrently with or prior to such proceedings. In case of personal service or a voluntary appearance of the defendant in the main action, neither the action nor the judgment in any manner depends upon the attachment or garnishment, although the attachment and garnishment depend upon the main action. In such case the judgment in the main case is precisely the same whether the attachment or garnishment is dismissed or not. This court could neither revise nor modify the final judgment in the main action in any particular in consequence of any error in the attachment or garnishment proceedings. In this instance, however, when the court discharged the garnishee and dismissed the garnishment proceedings, no personal service was had on Brent, nor had he then made a voluntary appearance. Upon the filing of an affidavit showing that the defendant Brent was a nonresident of this state and a resident of California, an order was made on the 1st day of February, 1908, for publication of summons. Personal service of the summons was had on him in California on the 7th day of February, 1908. The statute (section 2950, Comp. Laws 1907) provides that such service is equivalent to publication and deposit in the post office, and is complete on the tenth day after actual service. Upon such a constructive service jurisdiction to proceed in the main action is acquired only by a procedure against property of the defendant within the jurisdiction of the court. If there is no appearance of the defendant, and no personal service of process on him within the state, the case becomes a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. ...