Schaller & Son v. Marker
| Decision Date | 14 December 1907 |
| Citation | 114 N.W. 43,136 Iowa 575 |
| Parties | SCHALLER & SON v. CHAN MARKER, Defendant, ADDIE M. MARKER, Garnishee, Appellant |
| Court | Iowa Supreme Court |
Appeal from Buena Vista District Court.--HON. A. D. BAILIE, Judge.
ACTION in attachment on service by publication in which judgment was rendered against the garnishee; no appearance being made by the defendant. The garnishee appeals.
Reversed.
T. H Chapman and F. F. Faville, for appellant.
J. E Buland and F. H. Helsell, for appellees.
The action was commenced by petition filed in October, 1904, in which judgment was asked against the defendant, with allegations of grounds for attachment on which a notice was served on appellant as garnishee summoning her to make answer as the debtor of defendant. The garnishee answered, admitting that she was the holder by assignment from defendant of a receiver's certificate issued to him, but alleging that she was such holder for valuable consideration. The plaintiff controverted the answer, alleging that at the time that defendant assigned the certificate to the garnishee he was insolvent, and that the assignment was without consideration and for the purpose of putting his property beyond the reach of his creditors. On trial to the court without a jury, the plaintiff was given a judgment in rem on attachment by garnishment against the defendant and the garnishee for the amount of his claim, with costs, and the certificate which had been placed in the hands of the clerk of the court by the garnishee was ordered to be sold and the proceeds applied on the judgment so far as necessary. On this appeal by the garnishee, it is urged, first, that the court was without jurisdiction to render a judgment against the garnishee for want of valid service upon the defendant, and also that there was no sufficient evidence of the insolvency of the defendant at the time of the assignment of the certificate to the garnishee.
The contention with reference to jurisdiction is that the notice which was published in 1904, designated the defendant as "Chase Marker," instead of "Chan Marker," and that the notice was therefore of no effect to confer jurisdiction on the court. Such a misnomer of the defendant unquestionably renders the notice totally ineffectual, and the court acquired no jurisdiction of the proceedings by publication thereof. Thornily v. Prentice, 121 Iowa 89, 96 N.W. 728; Fanning v. Krapfl, 61 Iowa 417, 14 N.W. 727; Hubner v. Reickhoff, 103 Iowa 368, 72 N.W. 540; Buchanan v. Edmisten, 1 Neb. Unoff. 429, 436 (95 N.W. 620). The court acquires jurisdiction by publication only by strict compliance with the statutory requirements. Carnes v. Mitchell, 82 Iowa 601, 48 N.W. 941; Bardsley v. Hines, 33 Iowa 157. If the court acquired no jurisdiction as to the subject-matter because the notice was fatally defective, it could not render a valid judgment against the garnishee, for the defendant, being in no way bound by the proceedings, would not be precluded from afterwards recovering against the garnishee the debt which such garnishee had been required by the judgment of the court to pay. The garnishee cannot be bound unless the defendant is also bound by the judgment. That voluntary appearance or submission to the jurisdiction of the court by the garnishee will not confer jurisdiction to render judgment against such garnishee when there is no valid judgment against the defendant is well settled. Barton v. Smith, 7 Iowa 85; Bean v. Barney, 10 Iowa 498; Toll v. Knight, 15 Iowa 370; Edler v. Hasche, 67 Wis. 653 (31 N.W. 57); Hamilton v. Plumer, 67 Mich. 135 (34 N.W. 278); Barber v. Morris, 37 Minn. 194 (33 N.W. 559, 5 Am. St. Rep. 836).
Counsel for appellees seek to escape the conclusion above suggested as to the invalidity of the judgment against the appellant in several ways. They insist, first, that the express recital in the judgment that the court had jurisdiction of the defendant and the subject-matter gives rise to presumption that the judgment against defendant was valid, which presumption is not overcome by the recital in the record of notice by publication to "Chase" Marker conceding such notice to be of no validity, contending that there might have been another notice which was valid; but the ordinary presumptions in favor of a judgment do not apply to a judgment rendered on service by publication. To support the judgment on such service, the record must show compliance with the statutory provisions authorizing the court to acquire jurisdiction in this manner. Bradley v. Jamison, 46 Iowa 68. Furthermore, when the record shows that a notice was actually served, which is wholly insufficient to give the court...
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