Northern Indiana Ry. Co. v. Lincoln Nat. Bank

• Decision Date: 29 June 1910
• Docket Number: No. 6,812.,6,812.
• Citation: 92 N.E. 384,47 Ind.App. 98
• Parties: NORTHERN INDIANA RY. CO. et al. v. LINCOLN NAT. BANK.
• Court: Indiana Appellate Court

47 Ind.App. 98

92 N.E. 384

NORTHERN INDIANA RY. CO. et al.

v.LINCOLN NAT. BANK.

No. 6,812.¹

Appellate Court of Indiana, Division No. 1.

June 29, 1910.

Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge.

Action by the Lincoln National Bank against the Northern Indiana Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed, with instructions.Brick & Graham, Harry R. Wair, and W. A. McInerny, for appellants. Anderson, Parker & Crabill, for appellee.

HADLEY, J.

This was an action instituted in the circuit court of St. Joseph county, Ind., by the Lincoln National Bank of Pittsburgh, Pa., as assignee of a nonnegotiable note executed in favor of one Dewitt Dilworth, also a resident of Pittsburgh, Pa., against the maker of said note, the Northern Indiana Railway Company, and the sureties thereon, Arthur Kennedy and Francis J. Torrence, which note was made and executed on November 15, 1904, due 15 months after date. The appellants answered by general denial and specially, in two paragraphs, the second and third, which are substantially the same, and allege in substance: That on August 9, 1905, in cause No. 10,529, in the circuit court of said county, one Frank H. Dunnahoo filed his complaint against the said Dewitt Dilworth, and at the same time and as auxiliary thereto filed his affidavit and undertaking in attachment on account, for $5,000, and on the same day caused a summons to be issued against said Dilworth, appellant railway company, the Citizens' National Bank of South Bend, and the Allegheny National Bank of Pittsburgh, Pa., which summons was returned on the same day by the sheriff of said county, which return showed that the same had been served on appellant railway company and on the Citizens' National Bank, but that neither Dilworth nor the Allegheny National Bank or any representative thereof could be found in said bailiwick. Whereupon, on said day, said Dunnahoo filed an affidavit and bond in attachment and a writ of attachment issued thereon against the property of Dilworth, which writ was returned “No property found.” That thereafter and on the same day an affidavit of nonresidence of said Dilworth and for publication of summons and notice was made and filed. That thereafter and on the same day said Dunnahoo filed his affidavit and bond in garnishment against the appellant Indiana Northern Railway Company, the Citizens' National Bank of South Bend, and the Allegheny National Bank of Pittsburgh, Pa. This writ was duly served by publication on the Allegheny National Bank and by personal service on the appellant railway company and said Citizens' National Bank; the personal service being had on said 9th day of August. The first publication of said summons and nonresident notice was had on August 11, 1904. On December 19, 1905, appellant railway company appeared in said cause and filed its disclosure, admitting the indebtedness on said note to said Dilworth. On February 9, 1906, said cause was submitted to trial and a judgment had in favor of Dunnahoo against Dilworth, and also against the garnishee Indiana Northern Railway Company, and said garnishee was ordered to pay the amount of the judgment and costs found against Dilworth to the clerk of the court, which it did at the maturity of said note in the amount of $3,873.42, and said garnishee was further ordered to pay what remained of said indebtedness after paying said judgment and costs to said Citizens' National Bank for the use of said Dilworth; it having been shown that said note was payable at said bank. It was also shown that the note that was thus liquidated was the same note sued on in this action. A demurrer for want of facts was sustained to each of said paragraphs. Appellants answered in another paragraph by a plea of payment. To the plea of payment appellee replied by denial. Upon issues thus joined, the cause was tried and judgment rendered in favor of appellee. The sustaining of the demurrers to the second and third paragraphs of amended answer is presented for our consideration. The question thus presented involves the determination of the validity of the judgment rendered in the garnishee proceedings; it being contended by appellee that since the writ of garnishment was issued prior to the first publication of the nonresident notice, it was invalid, and the judgment rendered thereon was void.

The proceeding instituted by appellee is a collateral attack upon the judgment rendered on the garnishment proceeding, and, if the defect in those proceedings was a mere irregularity, it nevertheless will withstand a collateral attack. The determination of the question here involved hinges upon the construction to be given section 966, Burns' Ann. St. 1908, being section 216, Code Civ. Proc (Rev. St. 1881, § 931), as amended by section 1 of an act of the General Assembly of 1897. See Acts 1897, p. 233. This section, in part, is as follows:

“In all personal actions arising upon contract, express or implied, or upon a judgment or decree of any court, if at the time such action is commenced or at any time afterwards (our italics) whether a writ of attachment has been issued or not, the plaintiff, or any person in his behalf, shall file with the clerk an affidavit that he has good reason to believe, and does believe, that any person *** has the control or agency of any property, moneys, credits or effects, *** the clerk shall issue a summons notifying such person, association or corporation to appear at the ensuing term of the court and answer as garnishees in the action. The summons shall be directed to the sheriff and served and returned by him in the same manner as a summons is served and returned in other cases.”

Appellee contends that under section 317, Burns' Ann. St. 1908 (section 55, Code Civ. Proc.; Rev. St. 1881, § 314), an action is not commenced against a nonresident until the first publication of notice. This section is as follows:

“A civil action shall be commenced, by filing in the office of the clerk a complaint, and causing a summons to issue thereon; and the action shall be deemed to be commenced from the time of issuing the summons; but as to those against whom publication is made, from the time of the first publication. The summons shall be issued by the clerk, under the seal of the court, and directed to the sheriff, and shall notify the defendant of the action commenced, the parties thereto, and the court where pending.”

It is evident that if the definition of “commencement of an action,” as above given, is applied with strictness to the garnishee statute, the writ in this case was prematurely issued; but appellants contend that this provision, as to when an action shall be deemed commenced, has reference primarily to limitations of actions, and should not be applied with strictness to remedial statutes. Upon examination, it will be found that in the revision of the Code of 1881, section 37 to section 54, inclusive, relate solely to the limitations of time within which actions may be commenced after their accrual. Then follows section 55, as above given, providing when an action shall be deemed to be commenced. It is therefore evident that section 55 was enacted for the primary purpose of fixing a definite time within which the plea of statute of limitations might be made; but the section by its terms is not limited to this purpose, and the provisions thereof should therefore be applied to other enactments of the Legislature, where the time of the commencement of the action is material, unless the provisions of the subsequent enactment show a contrary intent, or the construction by such application would evidently subvert or frustrate the purposes of the legislative body.

Under the contention of appellee, in this case, Dunnahoo should have filed his complaint in his case against Dilworth, and, upon a return on the summons and writ of attachment of “Not found,” he should have waited until the first publication before issuing the writ of garnishment. This would have necessitated a delay of two days in securing the fund, within which time such fund might have been wholly withdrawn and plaintiff left remediless. In many cases such a course would mean a delay of perhaps a week, a condition wholly at variance with the fundamental purpose of garnishment and attachment proceedings that had their origin in necessity and whose efficiency depends on celerity of action; their main purpose being to secure a lien upon the property of a failing or fraudulent debtor. And to say that such a debtor must be notified of the service of a writ before a lien can be created is to give him the opportunity of perpetrating the very wrong which the garnishment may be intended to prevent. Raynolds v. Ray, 12 Colo. 108, 20 Pac. 4. Prior and up to the time of the amendment of 1897, writs of garnishment were dependent upon the issuance of writs of attachment, and such writs were authorized to be issued at the time of filing the complaint or afterwards. Acts 1881, pp. 274-275, § 197 (section 947, Burns' Ann. St. 1908). And this is still true by the terms of the statute, as to attachment. Section 947, Burns' Ann. St. 1908. Prior to the amendment of 1897, no judgment could be recovered against the garnishee unless a writ of attachment had been issued and a judgment had been rendered against the defendant in the attachment proceedings. Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370;Emery v. Royal, 117 Ind. 299, 20 N. E. 150. And it was to remedy the useless proceedings of the issuance of a writ of attachment and judgment thereon where there was no tangible property that the amendment of 1897 was made

Both writs have gone hand in hand since legislation began on this subject. The grounds for the issuance of one are the grounds for the issuance of the other. The procedure is identical, except in so far as changes are necessary to effectually apply to the different classes of property involved. The...