Sharman v. (Eukes

• Decision Date: 14 March 1898
• Citation: 20 Mont. 555
• Parties: SHARMAN v. HUOT (EUKES, Intervener). EUKES v. HUOT.
• Court: Montana Supreme Court

20 Mont. 555

SHARMAN

v.HUOT (EUKES, Intervener).

EUKES

v.HUOT.

Supreme Court of Montana.

March 14, 1898.

Appeals from district court, Gallatin county; F. K. Armstrong, Judge.

Action by Helen G. Sharman against Frank Huot, aided by attachment. From two separate orders discharging the writ of attachment on motions of defendant and M. J. Eukes, intervener, plaintiff appeals. Affirmed.

Hartman Bros. & Stewart, for appellant.

Luce & Luce, for respondents.

PIGOTT, J.

These are appeals from two separate orders discharging a writ of attachment. From the transcript in No. 1,068 it appears that the plaintiff filed her complaint on February 25, 1897, and that the sheriff thereupon received a certain paper, which gave the title of the cause and the style of the action, and proceeded thus: “The State of Montana to the Above-Named Defendant: You are hereby summoned to answer the complaint in this action which is filed in the office of the clerk of this court, a copy of which is herewith served upon you, and to file your answer and serve a copy thereof upon the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and, in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Witness my hand and the seal of said court, this 25th day of February, 1897. [Seal of Court.] ___ Clerk.” The clerk then issued a writ of attachment against the defendant, and the sheriff, on February 26th, delivered to the defendant a copy of the foregoing supposed summons, and also delivered to him a copy of the complaint. On the same day, the sheriff executed the writ of attachment upon the property of the defendant. On March 4th, the defendant, appearing specially, moved the court to discharge the writ of attachment, on the ground that the issuance of a summons had not accompanied or preceded the writ. The court discharged the writ, and dissolved the attachment. From this order, the plaintiff appeals.

In No. 1,076 it appears that the intervener, Eukes, on March 1, 1897, commenced an action against defendant, and that the sheriff executed a writ of attachment, issued in that case, upon the same property seized by him in Sharman against Huot. Eukes moved the discharge of the writ, and a dissolution of the attachment in the Sharman case, upon the grounds stated in defendant's motion for the same purpose in that case. The court granted the motion of Eukes, and plaintiff again appeals.

We are of the opinion that the district court properly discharged the writ of attachment. Section 890 of the Code of Civil Procedure provides that “the plaintiff at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered.” This statute was adopted from California, and the interpretation it bore in that state when adopted is controlling. In Low v. Henry, 9 Cal., at page 552, the court held that a writ of attachment issued before the issuance of a summons is void, and that the subsequent issuance of the summons cannot give effect to that which was void from the beginning. Moreover, we think there can be no doubt upon principle that a writ of attachment issued before the summons is, under the statute, not voidable merely, but void. Summons was not issued. The law, by section 632 of the Code of Civil Procedure, prescribes the requisites of a summons. It reads: “The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court and must contain: The names of the parties to the action, the court in which it is brought, and the county in which the complaint is filed, and must be substantially as follows,” etc. The language is mandatory. Dyas v. Keaton, 3 Mont. 495;Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456;Lyman v. Milton, 44 Cal. 630;Black v. Clendenin, 3 Mont. 47;Gray v. Hawes, 8 Cal. 563;Smith v. Aurich, 6 Colo. 388. The summons must be signed by the clerk. His signature is a matter of substance. It is a fundamental part of the summons. Without it there is no summons. In Sidwell v. Schumacher, 99 Ill. 433, the court said: “While there is some conflict of authority upon this subject, yet it is believed that the weight of the authority establishes the proposition that 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.” In Hernandez v. Drake, 81 Ill. 38, it is said: “The fortieth section of the chapter entitled ‘Courts' (Rev. St. 1845. p. 147) provides that the clerks of the circuit courts may issue process in all cases arising therein, which shall bear teste in the name of and be signed by such clerks, respectively, and be dated on the days on which they issue, and be made returnable according to law. That the writ must be signed by the clerk is made indispensable by this enactment.” In Riggs v. Bagley, 2 G. Greene, 383, the supreme court of Iowa, in the course of an opinion holding that a certain writ was properly quashed, said: “It is true, as is urged, that the seal of the district court proves itself; but it does not of itself prove that it was affixed by the proper officer, or by his authority. The clerk is the keeper of the seal. He alone is authorized to use it; and, upon affixing the seal officially in any process, he should attest the fact over his signature.” We cite the following cases as being either directly in point, or lending support to principles upon which these views are based: Choate v. Spencer, 13 Mont. 127, 32 Pac. 651;Wimbish v. Wofford, 33 Tex. 109;Andrus v. Carroll, 35 Vt. 102;Gardner v. Lane, 14 N. C. 53; Pendleton v. Smith, 1 W. Va. 16; Laidley v. Bright, 17 W. Va. 779; Hutchins v. Edson, 1 N. H. 139;Reynolds v. Damrell, 19 N. H. 397;Wiley v. Bennett, 9 Baxt. 581;Smith v. Affanassieffe, 2 Rich. Law, 334;Chapin v. Allison, 15 Ohio, 566; Tibbetts v. Shaw, 19 Me. 204; Reeder v. Murray, 3 Ark. 450; Stayton v. Newcomer, 1 Eng. (Ark.) 451; Wheaton v. Thompson, 20 Minn. 196 (Gil. 175); Anderson v. Joiiett, 14 La. Ann. 614; Dexter v. Cochran, 17 Kan. 447; In re Farr (Kan. Sup.) 21 Pac. 273;Pelham v. Edwards (Kan. Sup.) 26 Pac. 41;Greenleaf v. Mumford, 30 How. Prac. 30;Smith v. Hackley, 44...