Fletcher v. Wear

• Decision Date: 30 April 1884
• Citation: 81 Mo. 524
• Parties: FLETCHER, Appellant, v. WEAR, Administrator of Donnelly, Garnishee.
• Court: Missouri Supreme Court

81 Mo. 524

FLETCHER, Appellant,

v.WEAR, Administrator of Donnelly, Garnishee.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jefferson Circuit Court.--HON. L. F. DINNING, Judge.

AFFIRMED.

W. H. H. Thomas for appellant.

(1) A justice of the peace has authority to appoint a special deputy under section 2862, Revised Statutes 1879, to execute a writ of attachment. A writ of attachment is “process” authorized by article 3, chapter 44, Revised Statutes 1879, section 2849. Drake on Attachments, § 186; Benton v. Wilkinson, 18 Ver. 186. (2) The service of garnishment in this case was sufficient to give the justice jurisdiction to proceed to hear and determine the issues and render judgment. R. S. 1879, § 2520; Quarles v. Porter, 12 Mo. 49. (3) If, however, the execution of the writ of attachment by a special constable was irregular, the appearance before the justice on the return day of the writ, of plaintiff, defendant and the garnishee, and the trial of the case on its merits, in which all parties participated, cured the irregularity. Drake on Attachments, §§ 36, 112, 144, 114; Smith v. Chapman, 6 Porter (Ala.) 365; Gould v. Meyer, 36 Ala. 565, and cases cited; Bank v. Titsworth, 73 Ill. 591; Smith v. Monks, 55 Mo. 106; Reppstein v. Ins. Co., 57 Mo. 86; Henderson v. Droce, 30 Mo. 358. (4) No written interrogatories to the garnishee are required before justices of the peace in garnishment proceedings. R. S. 1879, § 2543; Laughlin v. January, 59 Mo. 383.

Williams & Green for respondent.

In this case there was neither a return, showing anything attached in the garnishee's hands, nor any officer who could have served a notice of garnishment or made a return. The justice, therefore, plainly obtained no jurisdiction, and the case was, for that reason, properly dismissed by the circuit court. R. S. 1879, § 420, subdivisions 4 and 5, and §§ 2520, 2529; Norvell v. Porter, 62 Mo. 309; Drake on Attachment, (5 Ed.) §§ 451 b, 451 d, 452, 453.

MARTIN, C.

This suit was originally instituted before a justice of the peace by attachment. The writ of attachment was issued on the 10th day of February, 1880; and J. O. French, the justice before whom the suit was instituted, indorsed on said writ the following: “At the request and risk of the plaintiff, I authorize Chas. T. Rankin to execute and return this writ. J. O. French, Justice of the Peace.” Said Rankin made the following return: “Executed this writ by delivering the same to Albert M. Baker, which he read in my presence on the 11th day of February, 1880, and by attaching the following goods and chattels of the defendant * * and by delivering to Eugene J. Donnelly and William Blank, on the tenth day of February, A. D. 1880. That I did summon them, as garnishees, to appear before the within named justice, at his office, on the return day of this writ, to answer such interrogatories as may be put to them by said justice, and by reading to them this writ of attachment.” And at the same time, said Rankin delivered to said Donnelly, a summons, as follows:

“Charles C. Fletcher, plaintiff, against Albert M. Baker, defendant.

Before J. O. French, Justice of the Peace.

The State of Missouri, to Eugene J. Donnelly and Wm. Blank, greeting:

You are hereby summoned as garnishees, to appear before J. O. French, justice of the peace of Valle Township, in Jefferson County Missouri, at his office, in said township, on the 20th day of February, 1880, at 10 o'clock a. m., to answer such interrogatories as may be exhibited against you touching your indebtedness to the above named defendant, Albert M. Baker, and your possession or control of money, property or effects, belonging to Albert M. Baker.”

On February 20, 1880, French, on application of Baker, granted a change of venue to B. S. Reppy, justice of the peace. The papers were handed over to Reppy, and on the same day plaintiff and defendant appeared before the latter justice, and waived notice, etc. Defendant, Baker, filed his plea in abatement, denying the causes of attachment set up by plaintiff. A trial was thereupon had of the issue raised by that plea, and that issue was found by a jury, for the plaintiff, and judgment was thereupon rendered against defendant for $149. On the same day E. J. Donnelly appeared before said justice and made answer to interrogatories propounded to him, and stated that he owed defendant $114.39, and judgment was thereupon rendered against him as garnishee for that amount. Defendant, Baker, then, on the same day, filed before said justice, his motion asking the justice to allow him the amount due by Donnelly to him, as exempt from attachment. In this motion he states: “Now, at this day, comes defendant, and states that Eugene J. Donnelly is indebted to him in the sum of $113.64, and that said sum has been garnished at the instance and suit of the above named plaintiff, by virtue of the writ of attachment in this cause.” The justice overruled this application, and defendant retired from the contest, and has not appealed. The garnishee, Donnelly, made no objection to any of the proceedings on the day of trial, but on March 1, 1880, eight days after the trial, and in absence of plaintiff, he filed his motion to set aside the judgment rendered against him on February 20, 1880, which he called a judgment by default, for the following reasons: “1st.--Because the justice had no jurisdiction of the person of said defendant in said cause, or of the subject-matter, and no power to render any judgment against defendant. 2nd.--Because said Donnelly was not, prior to rendition of said judgment, or at any time, garnished in said cause, so that said judgment against him is void.”

This motion was overruled and Donnelly appealed the case to the circuit court. When the case reached that court, Donnelly filed his motion to dismiss the cause of action, setting up substantially that a special constable could not execute a writ of attachment, and that Donnelly had not been properly summoned as garnishee, and that the credits of defendant, Baker, had not been attached in his hands, and that no written interrogatories had been filed before the justice. This motion was sustained by the court, and plaintiff duly excepted at the time. Plaintiff then filed his motion to have the judgment of the court dismissing his cause of action set aside, and to re-try the same, which was by the court overruled; to which action of the court, plaintiff at the time excepted, and brings the case to this court by appeal.

By section 2862, Article III, Chapter 44 of the Revised Statutes, a justice of the peace is empowered to appoint any suitable person, not a party to the suit, to execute any process “authorized by this article.” R. S. 1879, § 2862. This may be done when he is satisfied that such process will not be executed for want of an officer to be had in time to execute the same. The appointment is to be evidenced by an indorsement to that effect on the process itself. It has been held that this section does not apply to suits of replevin, or to final process on execution, but only to ordinary process. Henoch v. Chaney, 61 Mo. 129; Huff v. Alsup, 64 Mo. 51. Process by attachment is not authorized by article 3, although in section 2849 it is alluded to as one of the forms in which actions may be instituted before justices of the peace. The authority for issuing the writ is not derived from this article, but from Article 2, Chap. 6, which prescribes the affidavit and writ, and method of service thereof as prevailing before justices of the peace. R. S. 1879, §§ 464 to 481. Article 3 of Chapter 44 prescribes only the form and method of service of ordinary process by summons, and it is in connection with such process that the justice is empowered to appoint some suitable person to perform the duties of constable. The service of a writ of attachment by garnishment process is not provided for in Article 3 of Chapter 44, but is found elsewhere. R. S. 1879, §§ 420 to 481.

Under the decisions cited, I do not think the justice was empowered to appoint any one to serve the extraordinary process of attachment by garnishment. From this, it follows that there was no service of the process at all, and that the credit in the garnishee's hands was never legally attached by virtue of the process used by plaintiff. Notwithstanding this the garnishee stood up in court, as if legally garnished, and made answer...