Hudson Coal Co. v. Hauf

• Decision Date: 04 June 1910
• Docket Number: 616
• Parties: HUDSON COAL CO. v. HAUF
• Court: Wyoming Supreme Court

109 P. 21

18 Wyo. 425

HUDSON COAL CO. v. HAUF

No. 616

Supreme Court of Wyoming

June 4, 1910

ERROR to the District Court, Fremont County, HON. CHARLES E CARPENTER, Judge.

The material facts are stated in the opinion.

Affirmed.

W. E Hardin and Kinkead & Mentzer, for plaintiff in error.

Error was prosecuted from a judgment of a Justice of the Peace to the District Court by the plaintiff in error, and it was claimed: (1) That the justice had no jurisdiction over plaintiff in error for the following reasons: (a) There was no pleading filed with the justice as contemplated by law. (b) If a pleading was filed, the service of summons was not in accordance with law, to all of which objection was properly made. (2) That judgment could not be rendered against the plaintiff in error until judgment had first been rendered against the defendants in the attachment cases which fact should have been alleged and proved. (3) The laws of this State do not recognize such a thing as a garnishee defendant. There was nothing in the summons to apprise the defendant of the nature of the plaintiff's claim and it was therefore void. The return did not comply with the statute, and the motion of plaintiff in error to quash the service should have been sustained. Before action can be maintained against a garnishee the condition provided for in Section 4020, Revised Statutes, must be observed, viz: that final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined. The petition is insufficient for the reason that it does not show the rendition of a judgment against the attachment defendants. The mere statement that judgment was confessed does not show that judgment was rendered. The petition does not show that the answer of the garnishee was reduced to writing, nor that there had been any order by the justice requiring the garnishee to pay anything into court. (23 Cyc. 668, 716; Becker v. Breen, (Neb.) 94 N.W. 614; Hunels v. Miller, 52 Miss. 845; Beaupre v. Brigham, (Wis.) 48 N.W. 596; Frisk v. Reigelman, (Wis.) 43 N.W. 1117, 44 id. 766; 20 Cyc. 1110; Ry. Co. v. Ward, (Ala.) 26 So. 234.) The petition not stating facts sufficient to constitute a cause of action will not support a judgment. (Crewdson v. Nefsy Co., 14 Wyo. 61; Nichols v. Com'rs., 13 Wyo. 1; Pointer v. Jones, 15 Wyo. 1.) It is permissible to examine errors not assigned, and it is customary to review jurisdictional errors appearing on the face of the record. (Clendenning v. Guise, 8 Wyo. 91; Leathers v. Geitz, (Ia.) 112 N.W. 191; Wearne v. France, 3 Wyo. 273.) The allegation that the attachment defendant confessed judgment states merely a conclusion of law. (Ry. Co. v. Rogers, (W. Va.) 62 L. R. A. 188.) It is necessary that the petition show that there is a fund in the hands of the garnishee which can be reached by the proceedings. This is not properly alleged. Again, the petition is fatally defective for the failure to show the jurisdiction over the garnishee in the original action. This action is purely statutory which requires that all the jurisdictional prerequisites be alleged. (Clendenning v. Guise, supra.) To allege that a party "was made garnishee defendant" in an alleged action does not sufficiently show that such party was duly served with summons in the garnishment proceedings, and the averment that the corporation garnishee "appeared by its general manager" does not cure the jurisdictional defect. (Wells v. Ex. Co., (Wis.) 11 N.W. 537; Stein v. Norton, 45 Wis. 412; State v. Duncan, (Neb.) 56 N.W. 217.) The requirement as to alleging service upon the garnishee applies with particular force where, as in this case, the garnishee is a corporation, and it should appear that the statutory provisions as to service upon a corporation was complied with. The statute does not provide that a garnishee may confer jurisdiction by his appearance without proper service of process. He is a stake holder, and must be impartial. He cannot voluntarily place the creditor's debt within the jurisdiction of a court that it may be taken by some other person. (Drake on Attachment, 451b; Schindler v. Smith, 18 La. Ann, 476; Wade on Attachment, 336.) This court cannot assume that any summons was issued or served upon the attachment defendant in the actions wherein it is claimed that plaintiff in error was garnishee defendant. (Garbanati v. Beckwith, 2 Wyo. 213.)

M. C. Burk, for defendant in error.

The summons was properly served upon the plaintiff in error, having been served upon its general manager, and the return shows a proper service. The defendant made a general appearance when it appeared by its attorney and consented to a continuance. (Kirkpatrick &c. Co. v. Electric Co., 65 N.E. 913.) It was a general appearance also to file the motion to dismiss the action, and thereby the company submitted to the jurisdiction of the court. (Mason v. Alexander, 7 N.E. 435.) Garnishment proceedings are collateral to the principal suit, and the action against the garnishee is a collateral proceeding. It is true that no judgment can be rendered against the garnishee until judgment has been rendered against the principal defendant, but when judgment is so rendered, the only right the garnishee has is to inquire into the jurisdiction in the principal case. Any mere irregularities in that case cannot be brought in question by the garnishee, for he will be protected in paying the judgment. (Roofing Co. v. Macey, 3 N.E. 417; Furnace Co. v. Mfg. Co., 54 N.E. 990; Kirk v. Dearth, 49 N.E. 413; Dalton v. Debbs, 32 N.E. 570.)

A bill of exceptions is necessary to bring to the consideration of this court matters not wholly a part of the record. There are, therefore, but two questions before the Court: (1) Does the record show jurisdiction of the Justice of the Peace, or the District Court to render judgment? (2) Does the record disclose facts sufficient to support a judgment? There may be a want of jurisdiction shown by the evidence when the record shows on its face that there is jurisdiction. It was not necessary that the petition against the garnishee set forth all the facts as to his answer. The manner of securing jurisdiction in the attachment suits is a matter of evidence, as well as the manner of service upon the defendant. They are not matters shown by this record. It is urged that no appearance of a garnishee can give the court jurisdiction. But the appearance which we claim was made by the garnishee by the motions filed in the case is the appearance in the present case, and surely he can make himself liable to the jurisdiction of the court by his voluntary appearance in this case. It was unnecessary to allege matters anticipating the defense. The ultimate facts are all that is necessary to be pleaded.

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., did not sit in this case.

OPINION

BEARD, JUSTICE.

In this case the defendant in error, Hauf, recovered judgment against the plaintiff in error, Hudson Coal Company, in justice's court for $ 138.15 and costs. The Coal Co. took the case to the District Court on error, where the judgment of the justice was affirmed. The Coal Co. brings the case here on error.

The action was brought by Hauf against the Coal Co. as garnishee in three suits brought by Hauf against three different defendants, on the ground that the disclosure of the garnishee in its answer in each of said cases was unsatisfactory to the plaintiff. The action was brought under the provision of Section 4476, R. S. 1899, Section 5340, Wyoming Compiled Statutes 1910, as follows: "If the garnishee fails to appear and answer, or if he appears and answers, and his disclosure is not satisfactory to the plaintiff, * * * * the plaintiff may proceed against him in an action in his own name, as in other actions, and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property, and the credits of every kind of the defendant, in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceeding against the garnishee, * * * The judgment in this action may be enforced as judgments in other actions." Sec. 4477, R. S. 1899, Sec. 5341, Comp. Stat. 1910, provides, "Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment has been determined. " Sec. 4458, R. S. 1899, Sec. 5321 Comp. Stat. 1910, provides, "All persons having in their possession or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice as provided in the last two sections shall, unless such property is delivered up or transferred, or such debts be paid to the officer to whom the writ is directed and delivered, be liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged or any judgment recovered by him be satisfied."

There was no bill of exceptions filed in the District Court, and therefore the only questions properly before that court were whether the Justice of the Peace had jurisdiction, and whether the pleadings were sufficient to sustain the judgment. It is insisted that there was no pleading upon which judgment could be rendered, because the record fails to show that a petition was filed by the justice. The transcript of the justice's docket states that a petition was filed. And attached to the transcript is a petition and other papers entitled in the case and certified by the justice to be all the original papers filed before him in the case, naming them, and all, including the transcript, under one...