Carter v. Koshland

• Decision Date: 17 November 1885
• Parties: CARTER and others v. KOSHLAND.
• Court: Oregon Supreme Court

8 P. 556

12 Or. 492

CARTER and others v. KOSHLAND.

Supreme Court of Oregon

November 17, 1885

Appeal from Multnomah.

M.G. Munly and E.B. Watson, for respondent.

A.F Sears and Raleigh Stott, for appellant.

THAYER, J.

This appeal is from a judgment of the circuit court for the county of Multnomah, rendered in favor of the respondent, against the appellant, in certain garnishee proceedings. It appears from the transcript that on the thirteenth day of May, 1885 the respondent, a private corporation, commenced an action at law against one L.H. Frank in said court to recover a debt of some $378.57, due from the latter to the former, and thereupon sued out a writ of attachment, which was issued on the next day. The attachment is in the usual form. The sheriff, to whom the writ was delivered, certified thereon as follows:

"I hereby certify that I received the within writ of attachment on the fourteenth day of May, A.D. 1885, and executed the same on the fourteenth day of May, 1885, at Portland, in the county of Multnomah, in said state, by serving a garnishment upon Koshland Bros., as required by law, garnishing all debts, property, moneys, rights, dues credits or every nature in their hands or under their control, belonging or owing to the said L.H. Frank, to which the said Koshland Bros. made an answer thereto; said answer being hereto attached and made a part of this return."

The answer referred to is as follows:

"I hereby return that we have no property in our hands at this time, nor have any property, debts, money, dues credits, of any kind

or nature, belonging to L.H. Frank.

[Signed] "KOSHLAND BROS."

There seems to have been a notice, signed by the sheriff, directed to said Koshland, to the effect that by virtue of said writ of attachment all debts, etc., as mentioned in said return had been attached and garnished, and that said answer was indorsed thereon. Said notice bore date the fourteenth day of May, 1885. Upon June 1, 1885, the said circuit court gave judgment in said action at law in favor of said respondent, and against said Frank, for the amount of said debt; and on the ninth day of June, 1885, on motion of the respondent's attorneys, the judgment was amended by the insertion of a further adjudication to the effect that the property of said Frank, taken under writ of attachment, be sold to satisfy said judgment. Prior to the date of the amendment, on the sixth day of June, 1885, the respondent's attorneys made and filed and affidavit showing that said action at law had been commenced; that the judgment therein had been recovered on said first day of June, 1885; that on the fourteenth day of May, 1885, the said writ of attachment had been issued, and in which it was stated that garnishee process was duly served upon said Koshland Bros., and answer was made by them as before mentioned; that said answer was unsatisfactory to respondent, and that it was of the opinion and belief that Koshland Bros. had sufficient property in their possession and under their control belonging to said Frank to satisfy said judgment, which property was described in said affidavit, and wherein said attorney asked for an order citing the garnishee, as he termed him, to appear and be examined under oath. The circuit judge, it appears, on the same day, upon the said affidavit made the following order:

"It appearing to my satisfaction upon the plaintiff's affidavit herein that Koshland Bros. have property of the defendant, L.H. Frank, I hereby order that said Koshland Bros. appear before me at circuit court, department No. 1, on the thirteenth day of June, 1885, to answer concerning the same."

The affidavit and order were served upon Alfred F. Sears, Jr., an attorney of the said court, who admitted service thereof in writing in the following manner:

"State of Oregon, County of Multnomah--ss.: Due and legal service of the within affidavit, together with copy of same, served upon me this sixth day of June, 1885, in this county and state.

"ALFRED F. SEARS, Jr., of Garnishee's Attorneys.

(Same Venue.) "Due and legal service on me of the within order, together with copies of the same, this sixth day of June, 1885, within this county and state, is hereby acknowledged.

"ALFRED F. SEARS, Jr., of Garnishee's Attorneys."

On the tenth day of June, 1885, the said respondent's attorneys filed in the office of the clerk of the said circuit court written allegations in the form of a complaint, in which, among other things, is alleged the issuance of the said attachment, the service of a certified copy thereof, together with a notice, upon said Koshland Bros., whereby all debts, etc., as mentioned in said return, were duly levied upon and garnished to satisfy said judgment, and the making of the answer thereto of said Koshland Bros., which is hereinbefore set out.

It is further alleged in said allegations that said Koshland Bros. had property in their possession belonging to said Frank, and that they were holding the same to hinder and delay, etc., said Frank's creditors. Said attorney also filed a list of interrogatories propounded to said Koshland Bros. regarding said property, with said complaint, and upon which complaint and interrogatories was an admission of service by the said Alfred F. Sears, Jr., in the same form as upon said affidavit and order. No answer was filed to said allegations or interrogatories; and afterwards, and on the twenty-ninth day of June, 1885, the said circuit court gave judgment in favor of the respondent and against M. Koshland, who, I understand, is Koshland Bros., for want of answer, in the sum of $378.57, which is the judgment appealed from.

The appellant's counsel contended upon the argument that the said order should have been served upon the garnishee personally, and that no jurisdiction was acquired over the person of the garnishee by the service made upon Mr. Sears. There is no doubt about the correctness of that position, and it was conceded by the respondent's counsel upon the argument. But the latter insisted that said garnishee voluntarily appeared in the proceeding, and thereby gave the said court jurisdiction. Why an attorney should attempt to serve original process in any case except in the manner pointed out by the Civil Code is very strange...