Coda v. Same
| Decision Date | 21 March 1894 |
| Parties | Coda et al v. Thompson et al.Minotti o. Same |
| Court | West Virginia Supreme Court |
Process returnable to a day which is not a lawful return day is void.
An order indorsed upon an attachment, requiring a garnishee to appear and answer, is process. It must be returnable to the next term of the court. If it be not so returnable, but skips a term, and it is returnable to the second term after its issuance, it is void.
Such order being not simply irregular but void, it can not be amended as to its return-day.
Garnishment is the creature of statute; and the statute regulating procedure in it must be followed.
t Simms and Enslow for defendants in error, Thompson Bros, cited Code c. 106, s. 5, 14; Id. c. 124, s. 2; Drake Attchm. §g 451c, 451a, 451b; Suth. Sta:. Const. § 392; 58 la. 703; 58 Wis. 619; 67 Wis. 653.
Campbell & Holt for N. & W. R, Co.
the court, and can not be construed so as to make a writ, returnablethe second term after its issnuace, good. Code c. 106, s. 5; 37 W. Va. 847; 10 W. Va. 130; 1 Dev. (E. C.) 397; 50 Mich. 358; 58 la. 703; W. Va. Code, c. 106, s. 14.
such amendmant would have resulted in either the requirement of an impossibility of the garnishee, or compelled it to ansiver a writ that had never been served, upon it,
III. The motion for a new summons, retroactive in its character, was properly denied. 35 W. Va. 186.
Brannon, President:
These two cases involve one and the same question. They were actions of assumpsit with attachments, in which the Norfolk & Western Railroad Company was a garnishee; and the single question we must decide is: Was the action of the court in quashing the garnishment and discharging the garnishee correct?
The ground on which this action rests is that the order indorsed on the attachment by the clerk on the 10th of April, 1893, required the garnishee to appear on the first day of the September term, 1893, of the Circuit Court of Wayne county, passing over an intervening May term, instead of requiring appearance at the next term after the date of the order, as required by the letter of section 5, c. 106, Code 1891. The proposition made against the order of garnishment is, in effect, that it is made returnable to a day that could not be made its lawful return-day.
It is true that process returnable to a day which is not a return-day is void. Kyles v. Ford, 2 Rand, (Va.) 1. And it seems that process can not at common-law be made returnable to such a day, that a term of court will intervene between the day of issue and its return-day. 22 Am. & Eng. Euc. Law, 189. The cases there cited support the text. Our statute in relation to process generally (chapter 124, Code 1891) provides in section 2: "Any process shall be returnable, within ninety days after its date, to the court on the first day of the term or in the clerk's office to the first Monday in the month or to some rule-day." Whether the rule of the common-law just stated would apply to process passing over a term, if two terms should fall within ninety days, in view of the omission of the word "next," it is not necessary to say, since the order to summon a garnishee does not fall under that provision, but falls, specifically, under the clause in section 5 of chapter 106 directing the order to require the garnishee "to appear at the next term of the court." But I think the common-law rule would apply, especially in view of the presence of the words "next term" in the particular provision as to attachments in the same section. It is now a statute demand, declaratory of the common-law.
The clause quoted, relating to process generally, has been regarded as mandatory; and process deviating from its provision as to the return-day or running time has been treated as void. Upon this same clause in the Virginia Code the Court of Appeals of that State held, that a writ of scire facias running a longer period than ninety days was void. Lavell v. McCurdy, 77 Va. 763. And in Warren v. Saunders, 27 Gratt. 259, in the same spirit of construing the statutory direction as to process mandatory, it was held that process issued in a county, where the cause of action arose, but directed to another, was void. Such seems to be the law, as generally held. 22 Am. & Eng. Enc. Law, 190, and cases. What is said upon this provision in Gas Co. v Wheeling, 7 W. Va 22, tends strongly to the same construction.
So, if this order to summon the garnishee were tested by the clause quoted from section 2, c. 124, it would, I think, be null and void, because made returnable more than ninety days after its date, as under that clause: he process must run no longer than ninety days, whether it be returnable to a term of court or to rules. But, as above stated, the order to summon the garnishee falls under the clause of section 5, c. 106, which in terms requires it to be returnable to "the next term of the court," This is plain language. Taken literally it means the very next term after the date of the order. The order to summon the garnishee is indorsed upon the order of attachment, We may, for present purposes, consider it a part of it.
When we turn again to section 2, c. 124, of the Code, we see that while the period of ninety days is fixed as the running time for process in general, yet as to attachment the special provision is made, that it may be made "returnable to the next term of the court, although more than ninety days from the date of the order" a plain mandate that it must be made returnable to the next term. And, in harmony with this, we see that the very form of the order of attachment given in section 1, c. 106, requires it to be returned at the next term. Thus, the attachment must be returnable to the next term; and, if it skip an intervening term it would be simply void, under the principle of the common-law above spoken of, and the decisions referred to, treating such provisions in section 2, c. 124, relative to process as mandatory. Then, can the order to summon the garnishee be made returnable to a later and different term than that to which the attachment is itself returnable? I am compelled to say that it can not.
That is just what was done in these cases. The attachments were returnable to the next term after their issuance (May term), and the orders to summon the garnishee to the September term. It is bad, also, because returnable to a day not a lawful return-day.
The process of garnishment is not a common-law7 remedy but purely statutory; and therefore the statute provisions must be strictly followed. Ringold v. Suiter, 35 W. Ya. 186 (13 S. E. Eep. 46) Drake, Attachm. §§ 451, 451b; Wade, Attachm. §§ 333, 334; 8 Am. & Eng. Enc. Law, 1098. It is process, not a pleading, and must conform to the direction of the statute as to the time and place of the appearence of the garnishee to answer. Id. 1117. The Iowa statute requires that the garnishee be required to appear "on the first day of the next term of the court;" and the court held that a notice issued during a term requiring a garnishee to answer on a subsequent day of that term was void and conferred no jurisdiction over the garnishee, and its judgment was void, the court laying down the general proposition, that where the notice required the appearance at any other time than that fixed by the act, the court had no jurisdiction over the garnishee. The opinion, speaking of the statute requiring the notice to cite him to appear on the first day of the next term, says: Padden v. Moore, 58 Iowa, 703 (12 N W. Rep. 724).
In McDonald v. Vinette, 58 Wis. 619 (17 N W. Rep. 319) it was held: "The authority to institute garnishee proceedings is entirely statutory, and unless the requirements of the statute are complied with, the proceeding can not be sustained," and that, because the garnishee summons was not made returnable at the time prescribed by statute, the court had no jurisdiction as to the garnishee; and its judgment was void.
In the later case of Elder v. Hasche, 67 Wis. 653 (31 N. W. Rep. 57) it was decided that, unless the summons be for the garnishee to appear at the time fixed by statute, there is no jurisdiction, though the garnishee voluntarily appear, and that an order made without such jurisdiction was no justification to the garnishee for delivering property under it. I will add that this is an attachment, and it is needless to cite authorities, that in such cases strictness of procedure is required.
What can be said to sustain the order of garnishment? It is contended that the words in statute, "next term of the court in which the action is pending," do not mean the next term when the action is regularly in court for the first time for trial, as it would be idle to bring on a controversy between the plaintiff and garnishee before the term when it could be decided, whether the plaintiff is entitled to judgment against the defendant. It is true there can he no final judgment subjecting the money or effects in the hands of the garnishee, in advance of judgment for the plaintiff against the defendant. George v. Blue, 3 Call. 391; Gibson v. White, 3 Munf. 94; Withers v. Fuller, 30 Gratt. 547; Drake, Attachm. § 460.
But it does not thence follow that an earlier return of the order to the garnishee is not material. The garnishee has rights here. He has right to appear i i advance of the trial between the plaintiff and defendant, which may be deferred for years. He may answer any time. If...
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