Duluth Brewing & Malting Co. v. Allen

• Court: Montana Supreme Court
• Writing for the Court: HOLLOWAY, J.
• Citation: Duluth Brewing & Malting Co. v. Allen, 51 Mont. 89, 149 P. 494 (Mont. 1915)
• Decision Date: 04 June 1915
• Docket Number: 3525.
• Parties: DULUTH BREWING & MALTING CO. v. ALLEN.

149 P. 494

51 Mont. 89

DULUTH BREWING & MALTING CO. v. ALLEN.

No. 3525.

Supreme Court of Montana

June 4, 1915

Appeal from District Court, Sheridan County; Frank N. Utter, Judge.

Action by the Duluth Brewing & Malting Company against Barney Allen. From an order discharging the attachment, plaintiff appeals. Affirmed.

R. O Lunke, of Sidney, and J. R. Wine, Jr., of Helena, for appellant.

C. E Comer and J. A. Heder, both of Medicine Lake, for respondent.

HOLLOWAY J.

On March 2, 1914, this action was commenced in the district court of Sheridan county to recover a balance alleged to be due for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant. On the same day a summons and writ of attachment were issued, and thereafter certain property belonging to the defendant was seized by virtue of the attachment. On March 28th an alias summons was issued. On May 8th the defendant appeared by general demurrer, and on May 16th moved the court to discharge the attachment on the ground that it had been issued prior to the issuance of a valid summons. This motion was sustained and from the order discharging the attachment plaintiff appealed.

Attachment is classified by our Codes as a provisional remedy. It is a summary proceeding ancillary to the action in which it is issued. As employed in sections 6656-6692, Revised Codes, the writ was unknown to the common law. It is of statutory origin and depends for its validity entirely upon a compliance with the statutory requirements. Those requirements are (a) that an action upon a contract, express or implied, shall be pending, and (b) that a valid summons shall be issued in the action prior to or at the time the writ of attachment is issued. Section 6656, Rev. Codes. In Sharman v Huot, 20 Mont. 555, 52 P. 558, 63 Am. St. Rep. 645, the foregoing section received consideration, and it was held that a writ of attachment issued prior to the issuance of a valid summons is void. The summons in this action dated March 2, 1914, was entitled in the district court of Valley county, though the action was brought, and was then pending, in Sheridan county. Section 6515, Revised Codes, provides:

"The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court and must contain: The names of the parties to the action, the court in which it is brought, and the county in which the complaint is filed, and must be substantially as follows. * * *"

In Sharman v. Huot, above, the provisions of this section were declared to be mandatory, following Black v. Clendenin, 3 Mont. 44, Sawyer v. Robertson, 11 Mont. 416, 28 P. 456, and Choate v. Spencer, 13 Mont. 127, 32 P. 651, 20 L. R. A. 424, 40 Am. St. Rep. 425. Whatever may be said of those earlier decisions, this much is true: Section 6515 was enacted to be observed. The courts have no authority to ignore its plain provisions altogether. To hold that there was substantial compliance with its requirements in this instance would do violence to every rule of construction and render the language of the statute meaningless. The summons directed the defendant to appear in the district court in and for Valley county, where no proceeding was pending against him. He was not summoned to appear in the district court of Sheridan county, where the action in question was pending. The summons does not conform substantially to the requirements of the statute, and for that reason is invalid. Smith v. Ellendale Mill Co., 4 Or. 70, is directly in point upon the facts and supports our conclusion. To the same effect is Gill v. Hoblit, 23 Ill. 473.

The so-called alias summons was not such in fact. Rev....