Keene v. Smith

• Decision Date: 28 March 1904
• Parties: KEENE v. SMITH et al.
• Court: Oregon Supreme Court

75 P. 1065

44 Or. 525

KEENE v. SMITH et al.

Supreme Court of Oregon

March 28, 1904

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by R.G. Keene against Z.T. Smith and F.I. Dunbar, as Secretary of State, garnishee. From an order dismissing the garnishment, plaintiff appeals. Affirmed.

Frank Holmes, for appellant.

A.M Crawford, Atty. Gen., for respondents.

WOLVERTON J.

The plaintiff, having recovered a judgment in the justice's court against the defendant Z.T. Smith, procured an execution to be issued upon it, by virtue of which a notice of garnishment was served upon the Secretary of State, with a view of attaching any sum that might be found due Smith from the state, he being an employé thereof. The Secretary moved for a discharge of the garnishment, upon the ground that he is not amenable thereto which motion having been allowed, the plaintiff appealed to the circuit court, and, the judgment of the justice's court having been affirmed, plaintiff now appeals to this court.

There is but one question involved, which is indicated by the motion to discharge the garnishment. Under the state Constitution (article 4, § 24) provision may be made by general law for beginning suit against the state as to all liabilities originating after or existing at the time of its adoption. Up to the present time the Legislature has not, in pursuance of the power thus delegated, deemed it important or advisable to authorize or permit the state to be sued, and such is the condition of the law that no suit or action can be instituted or maintained against it except with its consent and consequent submission to the jurisdiction of the court. Salem Mills Co. v. Lord, 42 Or. 82, 69 P 1033, 70 P. 832. The principle is elementary, and so well settled that the further citation of authority is unnecessary. Indeed, we do not understand it to be seriously controverted. A garnishment proceeding as at present authorized by statute partakes of the nature of, and is in all essentials, a separate action or suit against the person garnished. If the latter answers satisfactorily, obviously that is the end of the controversy; but if he contests the right of garnishment, or his liability, then the suit perhaps more properly denominated an "action," is proceeded with as between the parties plaintiff and the garnishee, and is a separate proceeding from the original action, although auxiliary thereto. It is said by Mr. Waples in his work on Attachment, and quoted as authoritative in Case v. Noyes, 16 Or. 329, 19 P. 104, that "the plaintiff virtually sues the garnishee, for a debt due the defendant, by the process of garnishment. He takes the shoes of the latter, and asserts the rights which the latter has against a third person. He has to make out the case against the garnishee (when he is permitted to do so), unless the indebtedness to the defendant be admitted by the garnishee." Waples, Attach. (2d Ed.) § 472. At another section (470), he says of the proceeding that it "is a judicial cause between parties; it is begun by a summons or its equivalent, and results in a judgment, with all the other characteristics essential to a lawsuit." So Mr. Justice Strahan concludes, in the case just cited, that "under the Code the plaintiff in the original action, by the process of garnishment, becomes a plaintiff or actor against the garnishee. If the certificate which the garnishee is required to give proves unsatisfactory to the plaintiff, thereafter the proceedings by the plaintiff are in the nature of an action, and strictly adversary." In another case ( Smith v. Conrad, 23 Or. 206, 212, 31 P. 398, 399), Mr. Justice Bean says: "By the service on the garnishee of a copy of the writ of attachment and notice as provided by law, the plaintiff obtains the right, if the certificate is unsatisfactory, to maintain an action against him upon a liability existing in favor of the defendant in the original action. He thereby becomes, as it were, subrogated to the rights of action which the defendant has against the garnishee, and...