First State Bank of Addington v. Latimer

• Decision Date: 08 June 1915
• Docket Number: Case Number: 4330
• Parties: FIRST STATE BANK OF ADDINGTON v. LATIMER.
• Court: Oklahoma Supreme Court

1915 OK 444

149 P. 1099

48 Okla. 104

FIRST STATE BANK OF ADDINGTON v. LATIMER.

Case Number: 4330

Supreme Court of Oklahoma

Decided: June 8, 1915

Syllabus

¶0 1. PROCESS-- Acquiring Jurisdiction of Nonresident--Compliance with Statute. All exceptional methods of obtaining jurisdiction over a person not found within the state must be exercised in the way indicated by the statute.

2. PROCESS--Personal Service on Nonresident--Compliance with Statute. In order that legal personal service may be had under section 5616. Comp. Laws 1909, upon a nonresident of the state, an affidavit must be filed that the case is one in which service of summons may be made by publication. The summons must be issued by the clerk of the court, under the seal of the court, and be directed to the person to be served, notifying him, and requiring him to answer the petition filed by plaintiff within 60 days from the day of service of summons. Such service must be made by the sheriff of the county where service is made, and proof of such service made by affidavit of the person making the service, before a clerk of a court of record, or other officer holding the seal thereof, or before some commissioner appointed by the Governor of the state, under an act providing for the appointment of commissioners to take depositions.

3. GARNISHMENT--Property Subject-- Negotiable Paper. No judgment can be rendered upon the liability of a garnishee by reason of his having drawn, accepted, made, or guaranteed any negotiable instrument.

4. JUDGMENT--Void Judgment--Collateral Attack. A judgment rendered by a court which has not acquired jurisdiction of the person or the subject-matter of the action is void, and subject to collateral attack.

5. GARNISHMENT--Action Against Garnishee--Defense--Payment Into Court. A garnishee who pays into court money by an order of a court which has not acquired jurisdiction of the defendant in the action, or of the subject-matter of the suit, cannot plead such order and payment as a defense to an action brought by such defendant to recover an indebtedness due such defendant by such garnishee.

6. TRIAL--Demurrer to Evidence--Motion to Direct Verdict. A demurrer to the evidence of plaintiff, or a motion to direct a verdict against plaintiff, where the uncontradicted evidence shows beyond question that the plaintiff is entitled to recover, as claimed in his petition, is frivolous.

7. APPEAL AND ERROR--Presentation for Review-- Brief--In-structions. In order to have this court consider assignments of error, based upon the giving or refusal to give instructions to the jury, plaintiff in error must set out in his brief in totidem verbis the instructions complained of.

J. B. Wilkinson, for plaintiff in error.

E. E. Morris, Robert Burns, and O. M. Morris, for defendant in error.

COLLIER, C.

¶1 Defendant assigns the following errors:

"(1) The court erred in overruling defendant's motion for new trial, which was excepted to.

"(2) The court erred in refusing to sustain defendant's demurrer to the evidence of plaintiff, which was excepted to.

"(3) The court erred in refusing to sustain defendant's motion to direct a verdict for the defendant, which was excepted to.

"(4) For errors of law occurring during the trial and excepted to at the time.

"(5) The verdict and judgment are not sustained by the evidence and are contrary to law.

"(6) The court erred in giving his charge to the jury, and especially in giving the second and third paragraphs of said charge, which were excepted to at the time.

"(7) The court erred in refusing to give the defendant's first, second, third, and fourth requested charge, which was excepted to at the time.

"(8) The court erred in refusing to submit defendant's second defense, pleading former adjudication, which was excepted to.

"(9) The verdict of the jury is excessive and contrary to law."

¶2 Assignments numbered 1, 4, 5, 6, 7 and 9, respectively, are not assigned in compliance with rule 25 of this court, and hence will not be considered. The second and third assignments, under the uncontradicted evidence in this case, are frivolous and will be so regarded. It consequently follows that the only assignment of error which will be considered is:

"That the court erred in refusing to submit defendant's defense, pleading former adjudication."

¶3 In order to secure legal service of the summons in said case of H. A. Hall & Co. against R. D. Barlow, who was at the time in the state of Texas, it was necessary that an affidavit be filed to show that service could be made by publication; that the summons be issued by the clerk of said court under the seal of the court, and directed to defendant, notifying him that he had been sued by the plaintiff, and requiring him to answer the petition within 60 days from the date of service of said summons; that the service of summons be made by the sheriff of the county in which such service was made, and proof of such service made by affidavit of the person making the same before a clerk of a court of record, or an officer holding the seal thereof, or before a commissioner appointed by the Governor of the state, under an act providing for the appointment of commissioners to take depositions (Comp. Laws 1909, sec. 5616). In the said case of Hall & Co. against Barlow no affidavit was made showing that service in said case could be made by publication. The summons issued was not directed to the defendant (Barlow), but to the sheriff of Jefferson county, Okla., and did not notify Barlow that he was required to answer the petition filed in said case within 60 days after such service of summons upon him, but required him to answer the same within 19 days. The service was not made upon Barlow by the sheriff of the county in which such service was made, but was made by his deputy; and proof of service of such summons was not made by affidavit taken before a clerk of a court of record or other officer holding the seal thereof, or before some commissioner appointed by the Governor, under an act providing for the appointment of commissioners to take depositions. The law of this state authorizing service of summons upon nonresident defendants was adopted by us from the state of Kansas, and prior to its adoption was construed by the Supreme Court of Kansas, and this construction must be regarded as a part of said law, and is controlling and binding upon this court. In Adams et al. v. Baldwin et al., 49 Kan. 781, 31 P. 681, it is said:

"To obtain service by publication an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons upon the defendant or defendants to be served. * * * In the action commenced in Riley county there was no

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