Pennhoma Oil Co. v. Jens Marie Oil Co.
| Decision Date | 01 April 1924 |
| Docket Number | Case Number: 13075 |
| Citation | 224 P. 720,1924 OK 382,98 Okla. 211 |
| Parties | PENNHOMA OIL CO. v. JENS MARIE OIL CO. |
| Court | Oklahoma Supreme Court |
¶0 1. Garnishment--Service of Summons on Defendant--Necessity.
Section 355, Comp. Stat. 1921, provides that: "Upon the filing of such affidavit a garnishee summons shall be issued by the clerk and served upon the defendant or his attorney of record, and each of the garnishees, in the manner provided for service of summons, and shall be returned with proof of service in five days," and the court is without jurisdiction to render judgment against the garnishee, where the summons is not served upon the defendant or his attorney of record.
2. Same--Lack of Service--Invalidity of Judgment.
A judgment rendered against a garnishee without service of summons upon the defendant or his attorney of record is void and may be set aside or vacated upon the application of the garnishee at any time.
Commissioners' Opinion, Division No. 4.
Error from District Court, Kay County; J. W. Bird, Judge.
Action brought by Jens Marie Oil Company, a corporation, against H. E. Braymer, W. E. Rogers, M. E. Neff, Security National Bank of Arkansas City, Kan., and T. E. Revels, C.
E. Pingrey, and C. D. Hollingsworth, and the Pennhoma Oil Company, a corporation, as garnishee. Judgment for plaintiff, and the garnishee brings error. Reversed and remanded, with directions.
Philip Kates, for plaintiff in error.
L. A. Maris, for defendant in error.
¶1 On the 10th day of June, 1921, the defendant in error commenced its action in the district court of Kay county, against H. E. Braymer et al., defendants, upon a promissory note and to foreclose a mortgage to secure payment thereof. The note and mortgage were executed by said H. E. Braymer and the other defendants were joined for the reason, as stated in the petition, that they claimed some interest in the mortgaged property.
¶2 On the 10th day of February, 1921, the defendant H. E. Braymer entered a general appearance in the action. The other defendants were not served with process.
¶3 On the 11th day of June, 1921, the defendant in error filed an affidavit in garnishment naming the plaintiff in error as garnishee, and on the same day a summons in garnishment was issued directed to the sheriff of Tulsa county, and it appears that the same was served upon the plaintiff in error, Pennhoma Oil Company, on the 13th day of June, 1921, but no service was had upon the defendant H. E. Braymer.
¶4 On the 6th day of September, 1921, judgment was entered in favor of the defendant in error against said defendant H. E. Braymer for the sum of $ 10,351.24, and costs, including an attorney's fee of ten per cent. This judgment was rendered by default, and appears to be a general judgment for the balance due on the promissory note sued upon.
¶5 It appears from the record that on the 30th day of June, 1921, the plaintiff in error as such garnishee filed its answer in which it admitted that on said date it was indebted to the defendant Braymer in the sum of $ 5,125.51.
¶6 On the 29th day of October, 1921, judgment was entered against said garnishee, plaintiff in error, for said sum of $ 5,125.51.
¶7 On the 12th day of November, 1921, the plaintiff in error filed its verified petition in said cause praying that said judgment so entered against it as such garnishee be vacated for the reason, among others, that no garnishment summons was ever served upon the principal defendant, H. E. Braymer. This petition was overruled and denied, to which the plaintiff in error at the time excepted, and has perfected its appeal to this court.
¶8 The plaintiff in error contended in the trial court, and contends here, that the judgment entered against it as garnishee without service of the garnishee summons upon the principal defendant, H. E. Braymer, was and is void.
¶9 Section 355, Comp. Stat. 1921, provides, in substance, that upon filing of the affidavit in garnishment, summons shall be issued by the clerk and served upon the defendant and each of the garnishees as provided by law for the service of summons. Said secti...
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Voss Truck Lines, Inc. v. Citizens-Farmers Nat. Bank
...of the garnishee and of the res. ¶4 The cases cited by defendant do not conflict with the above holding. In Pennhoma Oil Co. v. Jens Marie Oil Co. (1924) 98 Okla. 211, 224 P. 720, the garnishment was before judgment, and no garnishment summons was served on defendant, who did not appear in ......
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Pennhoma Oil Co. v. Jens-Marie Oil Co.
...action, as required by the statute. The cause on appeal is styled Pennhoma Oil Company v. Jens-Marie Oil Company, and is reported in 98 Okla. 211, 224 P. 720. Mandate was issued to the district court of Kay county, and spread of record; and on the 14th day of May, 1924, an order and judgmen......
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Serv. Printing Co. v. Wallace
...the garnishment summons upon the defendant renders any judgment thereafter rendered against the garnishee void. Pennhoma Oil Co. v. Jens Marie Oil Co., 98 Okla. 211, 224 P. 720, and the cases therein cited. This rule presupposes no service upon the defendant and no entry of appearance by de......
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