Citizens' State Bank of Selfridge v. Smeland

• Decision Date: 18 November 1921
• Parties: CITIZENS' STATE BANK OF SELFRIDGE v. SMELAND.
• Court: North Dakota Supreme Court

48 N.D. 466

184 N.W. 987

CITIZENS' STATE BANK OF SELFRIDGE

v.SMELAND.

Supreme Court of North Dakota.

Nov. 8, 1921.

Rehearing Denied Nov. 18, 1921.

Syllabus by the Court.

Where a garnishee summons was served upon a garnishee alone on January 8, 1918, a disclosure by the garnishee made on January 12, 1918, and the summons and complaint filed in the district court on January 18, 1918, and where, about 2 1/2 years later, an affidavit for publication of the summons was filed upon the ground that the defendant was and had been a nonresident, publication thereof had, and judgment subsequently upon default rendered against the garnishee, it is held that the provisions of section 7383, C. L. 1913, requiring the publication of a summons within 60 days, applies, and the judgment is void.

A direct action to vacate such void judgment (when entertained by the trial court without objection), instead of a motion or other proceeding therefor, may be upheld.

Appeal from District Court, Morton County; Berry, Judge.

Action by the Citizens' State Bank of Selfridge against Olaf Smeland, and from an order sustaining a demurrer the plaintiff appeals. Reversed.

Christianson, J., dissenting in part.

Norton & Kelsch, of Mandan, for appellant.

Jacobsen & Murray, of Mott, for respondent.

BRONSON, J.

[1] This is an action to vacate a judgment against the plaintiff as garnishee. An appeal has been taken from an order sustaining a demurrer to the complaint. Among other things, the complaint sets forth the following allegations: On January 3, 1918, the defendant prepared a summons and complaint in an action against one Flynn, also a garnishment summons and affidavit therein, naming the plaintiff herein as garnishee. On January 8, 1918, the garnishment summons and affidavit were served upon the garnishee. On January 12, 1918, the garnishee disclosed the possession of a note for about $340, owned by Flynn. On January 18, 1918, the summons and complaint were filed in the district court. More than two years later, on June 28, 1920, there was filed in the district court an affidavit for publication of the summons, stating that the defendant Flynn was not a resident of the state and that the place of his residence was unknown. On November 20, 1920, there were filed, by the attorneys for Smeland, affidavits of default, stating that the summons was published for six weeks from July 1, 1920, to August 5, 1920, and that no answer or demurrer had been served upon them, although the statutory time therefor had expired. Pursuant to findings of the trial court, judgment for $310.15 and costs in favor of Smeland and against Flynn was entered on November 20, 1920. Likewise pursuant to the order of the trial court, judgment for $240.44 and interest in favor of Smeland and against the plaintiff herein, as garnishee, was entered on December 27, 1920. The complaint also alleges that the defendant did not make publication of the summons within 60 days, as required by statute; that the plaintiff, several months after its disclosure, believing that the action of Smeland had been discontinued, paid to others the property of Flynn in its possession; that the judgment against the garnishee is void; that its remedy by motion is not now available (section 7483, C. L. 1913); and that it possesses no other plain, speedy, or adequate remedy at law. The trial court, in sustaining the demurrer, held that the complaint did not state a cause of action; that there is no statutory limitation, in garnishment proceedings, upon the time when an affidavit for publication must be filed; that it was not necessary for Smeland to proceed with publication of the summons against Flynn within 60 days after the service upon the garnishee.

We are of the opinion that the trial court erred. The jurisdiction of the trial court in the action against Flynn and in the garnishment proceeding were mutually dependent upon appropriate proceedings in each action. The garnishment proceedings, although deemed an action (section 7581, C. L. 1913), were nevertheless dependent upon jurisdiction in the main action. If no jurisdiction would be secured against the defendant, no jurisdiction would remain in the garnishment proceedings upon which a judgment might be rendered against the garnishee. To permit the garnishment process to be served and the jurisdiction of the trial court to obtain over the “res,” it was necessary that a summons in the main action simultaneously issue. Section 7568, C. L. 1913. The court might acquire a jurisdiction either by the service of the summons or the service of the garnishee summons. Section 7583, C. L. 1913. Upon the service of the garnishee summons herein the court acquired a jurisdiction. The garnishment proceedings thereupon were deemed an action by Smeland against the plaintiff, as garnishee, and Flynn, as the defendant. Section 7581, C. L. 1913. The garnishment action was then an action pending. The court then possessed jurisdiction to proceed by publication of the summons in the main action. The main action and the garnishment action were then mutually dependent upon the other for the retention of jurisdiction.

Jurisdiction, if it existed at all, was necessarily predicated upon the nonresidence of the defendant. Otherwise, the garnishment proceedings would be void because no service was made upon the defendant. Section 7571, C. L. 1913.

Section 7383, C. L. 1913, provides that an action is commenced by the service of a summons; that an attempt to commence an action is deemed equivalent to the commencement thereof, when the summons is delivered with the intent that it shall be actually served to the sheriff or other officer of the county in which the defendant resides, etc.; that such an attempt must be followed by the first publication of the summons or the service thereof within 60 days.

The contention of the respondent that this section only concerns the statute of limitations, as stated in the subsequent sections, must be denied. The section is a general provision in the Code of Civil Procedure. Thus it has been during and since territorial days. Section 62, Code Civ. Proc. 1877. The policy of the law expressed throughout the Code of Civil Procedure is for the...