Serv. Printing Co. v. Wallace

• Court: Oklahoma Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Serv. Printing Co. v. Wallace, 1937 OK 54, 64 P.2d 863, 179 Okla. 58 (Okla. 1937)
• Decision Date: 26 January 1937
• Docket Number: Case Number: 25795
• Parties: SERVICE PRINTING CO. v. WALLACE et al.

1937 OK 54

64 P.2d 863

179 Okla. 58

SERVICE PRINTING CO. v. WALLACE et al.

Case Number: 25795

Supreme Court of Oklahoma

Decided: January 26, 1937

Syllabus

¶0 1. GARNISHMENT - Judgment Against Garnishee Void Where Garnishment Summons not Served on Defendant and He Enters no General Appearance in Proceeding.

Where the garnishment summons is not served upon the defendant and the defendant does not enter a general appearance in the garnishment proceeding on or before the garnishee's answer day, any judgment thereafter rendered against the garnishee in common pleas court is void.

2. APPEARANCE - Appearance of Defendant to Object That Garnished Debt Was not Garnishable Held General Appearance.

Where the defendant appears for the purpose of seeking an adjudication of the question of whether or not the garnisheed debt is garnishable and not for the purpose of attacking the jurisdiction of the court, such appearance constitutes a general appearance notwithstanding the fact that defendant denominates the same a special appearance.

3. PARTNERSHIP - Garnishment Affidavit Held Insufficient to Authorize Proceeding Against Individual Partner in Suit Against Partnership.

Where, in an action against a partnership, one of the individuals composing such partnership is proceeded against in garnishment, the garnishment affidavit stating only that the individual proceeded against has no property liable to execution sufficient to satisfy the plaintiff's demand, such garnishment should be dissolved upon application of said defendant.

Appeal from Court of Common Pleas, Tulsa County; Bradford J. Williams, Judge.

Action by the Service Printing Company against David Wallace and others. From order dissolving garnishment, plaintiff appeals. Affirmed.

W.R. Kerr, for plaintiff in error.

M.C. Rodolf and J.B. Houston, for defendants in error.

PER CURIAM.

¶1 On June 29, 1934, the Service Printing Company sued David Wallace, R.L. Crowder, and W.W. Henry in the court of common pleas for Tulsa county, the allegations of the petition being that the defendants, as partners, were indebted to the plaintiff upon a simple account in a sum in excess of $800. On the same date the plaintiff filed its affidavit in garnishment, stating that the garnishee, naming it, was indebted to the defendant Wallace and that said defendant had no property subject to execution sufficient to satisfy plaintiff's claim. On the same date a garnishee summons was issued to the garnishee commanding it to answer on or before July 19, 1934. On July 9th, prior to the answer day of the garnishee and prior to the return of the garnishment summons, Wallace filed what he termed a "Special Appearance and Motion to Dissolve Garnishment." The grounds set up in the motion were the insufficiency of the garnishment affidavit and the objection that, in an action against a partnership, plaintiff is not entitled to garnishment of one of the partners until after judgment against the firm and an attempt to satisfy the same out of firm property. On July 10th the garnishment summons was returned showing service thereof upon the garnishee, but no service upon the defendant. On July 14th, after a hearing, the court dissolved the garnishment and discharged the garnishee. On July 18th the garnishee answered that it was indebted to the defendant. The plaintiff appeals from the order dissolving the garnishment, and no question as to the jurisdiction of this court to entertain the appeal is raised.

¶2 The law is well settled in this jurisdiction that a failure to serve 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 defendant prior to the garnishee's answer day. Where, however, the defendant enters a general appearance prior to the garnishee's answer day, the defect is cured, and the court, having before it all of the parties, has jurisdiction to try the issues made by the garnishee's answer and render a judgment thereon. Pennhoma Oil Co. v. Jens Marie Oil Co., 123 Okla. 159, 252 P. 24 (a second appeal in the case supra).

¶3 Was the motion of defendant Wallace a general appearance notwithstanding its denomination as a "Special Appearance?" In it the defendant makes no mention of the fact that the garnishment summons was not served upon him. Indeed, this objection appears not to have occurred to him until after this appeal was taken. Possibly the objection as to the sufficiency of the affidavit goes to the jurisdiction of the court and properly could be termed a special appearance, but we do not decide this question. The fact remains that...