Merchants Credit Service, Inc. v. Chouteau County Bank
| Decision Date | 19 June 1941 |
| Docket Number | 8143. |
| Citation | 114 P.2d 1074,112 Mont. 229 |
| Parties | MERCHANTS CREDIT SERVICE, Inc., v. CHOUTEAU COUNTY BANK. |
| Court | Montana Supreme Court |
Rehearing Denied July 14, 1941.
Appeal from District Court, Eighth District; Chouteau County; C. F Holt, Judge.
Action by Merchants Credit Service, Inc., against the Chouteau County Bank, to recover from defendant as garnishee money belonging to plaintiff's judgment debtors, wherein defendant filed a demurrer. From a judgment for defendant plaintiff appeals.
Affirmed.
O. B Kotz and Palmer Johnson, both of Great Falls, for appellant.
Miller & Wiley, of Fort Benton, for respondent.
An action for damages. November 7, 1935, the plaintiff in the action at bar was given a default judgment by the district court for Cascade county against Hildia Bernard Nottingham and Beulah Hall Nottingham; September 17, 1936, a writ of execution was issued out of that court directed to the sheriff of Cascade county, but sent to the sheriff of Chouteau county and was regularly served by the latter on the Chouteau County Bank, the defendant in the action at bar; the levy on the bank was without results and the writ was returned by the sheriff "wholly unsatisfied."
The complaint in this action was filed in Cascade county March 20, 1938; summons was issued the same day and served the 31st; April 8th the defendant filed a general demurrer to the complaint, and at the same time filed a motion for change of venue from Cascade to Chouteau county. The motion for change of venue, not being opposed, was allowed. Hearing on the demurrer was noticed June 7th for hearing June 20th; on the last named date the defendant withdrew the demurrer and filed a motion to dismiss the action; which motion was, on September 14th denied; September 17th the plaintiff, without notice to the defendant, obtained an order from the district court for Cascade county in the Nottingham case amending the writ of execution, the effect of which amendment is the vital and sharply contested question involved in the controversy.
When the case was at issue and came on for trial in the district court, the parties stipulated that a jury be waived and the cause submitted to the court on an agreed statement of facts on briefs without oral argument. The facts agreed upon were, in substance, as follows:
1. That November 7, 1935, the plaintiff recovered judgment by default in the Eighth Judicial District in and for Cascade county against Hildia Bernard Nottingham and Beulah Hall Nottingham, which judgment is still held and owned by the plaintiff.
2. That on or about September 17, 1936, a writ of execution was issued out of the district court for Cascade county, directed to the sheriff of that county, but sent to the sheriff of Chouteau county, and was levied at the direction of the plaintiff by the sheriff of that county September 22, 1936, upon the defendant in this action.
3. That October 28, 1938, approximately two years after the alleged levy was made, an order was issued by a judge of the district court of Cascade county amending the execution writ. The wording of the order was as follows: "The word 'Cascade' appearing in the direction of the said Execution Writ shall be changed to the word 'Chouteau', and the word 'said' appearing on the same line shall be changed to the word 'the', so that the said line of direction shall read: 'To the Sheriff of the County of Chouteau, Greeting"'. The defendant had no notice or knowledge of the motion to amend the writ.
4. That when the levy was made on the defendant, return was made by E. W. Harris, vice president of the defendant bank, to the effect "the said bank had no property in its possession, nor under its control, belonging to said judgment debtors," and the writ was returned wholly unsatisfied.
5. When the levy was made on the defendant bank September 22, 1936, it had in its possession and under its control a deposit of $509.96 standing in the name of H. B. Nottingham.
6. H. B. Nottingham and Hildia Bernard Nottingham is one and the same person and Hildia Bernard Nottingham at times used and signed his name as H. B. Nottingham.
When the cause came on for hearing January 13, 1940, the stipulated facts were submitted to the court, as agreed and the matter was taken under advisement. May 21, 1940, judgment was made and entered in favor of the defendant and it was allowed costs in the sum of $25.50. The appeal is from the judgment.
A single specification of error is assigned under which a number of contentions are advanced, but we deem it unnecessary to go further than to determine whether or not a writ of execution directed to the sheriff of one county but sent to and served by the sheriff of another county and ordering him to levy upon property in his county creates a lien upon the property in the latter county. If such service was not valid service, plaintiff's action must fail.
Section 9417, Revised Codes, provides in part: "The writ of execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the clerk, and must be directed to the sheriff." This means, of course, the sheriff of the county where process is to be served.
Section 9423, Revised Codes, provides: This statute is mandatory in form. In re Farrell, 36 Mont. 254, 92 P. 785.
Section 9260, relating to attachments, which in all essentials are practically the same as levies under a writ of execution, provides in part: "The writ must be directed to the sheriff of any county in which property of such defendant may be."
In Keith v. Ramage, 66 Mont. 578, 589, 214 P. 326, 330, this court said: "Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder."
In State ex rel. O'Connor v. McCarthy, 86 Mont. 100, 108, 282 P. 1045, 1048, where the court had under consideration a case involving the power of a public officer and whether a particular duty prescribed by statute was mandatory or directory, it was said: '
In Fousek v. DeForest, 90 Mont. 448, 459, 4 P.2d 472, 475, it was said, "When an attachment is made upon personal property in the possession of a third person (a garnishment), as here, it is sufficient to comply with the statute."
In Sharman v. Huot, 20 Mont. 555, 52 P. 558, 559, 63 Am.St.Rep. 645, it was said: "Where the law expressly directs that process shall be in a specified form, and issued in a particular manner, such a provision is mandatory, and a failure on the part of the official, whose duty it is to issue it, to comply with the law in that respect, will render such process void."
Referring briefly to other jurisdictions we find in Sidwell v. Schumacher, 99 Ill. 426, 433, it was said: "The legislature or the people, through the constitution, have the unquestionable right to say of what process shall consist, and when they have declared that it shall be of a specified form, by implication all other forms are prohibited."
In Gordon v. Camp, 3 Pa. 349, 45 Am.Dec. 647, it was said: "No case has been decided, that an execution directed to the constable of a particular township, can be handed over by him to the constable of another township, to whom it was not directed, and that the latter could legally execute it. ***"
7 C.J.S. Attachment § 204, reads: "The writ must be executed by the executive officer of the court, or of some court of similar jurisdiction in another county or district, to whom it is directed, and whose duty it is to obey the mandate contained in the process, and service of the writ by an officer not legally authorized is void."
In 4 Am.Jur. 872, section 528, it is said: "As a general rule, a writ of attachment can be levied only by the officer to whom it is directed, who, of course, must by law be duly authorized so to act, an attachment by an officer without authority of law being no attachment at all. ***"
In 23 C.J. 404, § 181, it is said: "The direction in the writ to the officer, usually the sheriff, is what gives him his authority."
Under the writ involved here, the sheriff of Cascade county could have made a valid garnishment on property in that county, but in the hands of the sheriff of Chouteau county it was just another slip of paper. Service of process is provided for by statute. No statute can be found in our...
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Little Horn State Bank v. Stops
...issue to the proper sheriff, since a sheriff has no authority to serve the writ outside of his county. Merchants Credit Service v. Chouteau Co. Bank, 112 Mont. 229, 114 P.2d 1074. Absent the existence of the Crow Indian Reservation, there is no question that this writ of execution would be ......