Voss Truck Lines, Inc. v. Citizens-Farmers Nat. Bank

• Decision Date: 30 January 1940
• Docket Number: Case Number: 29069
• Citation: 102 P.2d 173,1940 OK 56,187 Okla. 289
• Parties: VOSS TRUCK LINES, Inc., v. CITIZENS-FARMERS NAT. BANK
• Court: Oklahoma Supreme Court

1940 OK 56

102 P.2d 173

187 Okla. 289

VOSS TRUCK LINES, Inc., v. CITIZENS-FARMERS NAT. BANK

Case Number: 29069

Supreme Court of Oklahoma

Decided: January 30, 1940

Syllabus

¶0 1. APPEAL AND ERROR--GARNISHMENT--Defects in form of process served on garnishee waived by appearance.

Where garnishment process, irregular and defective in form only, is served on garnishee, and it answers and submits itself to the jurisdiction of the court, a judgment against such garnishee will not be reversed upon the application of defendant because of such defective process.

2. GARNISHMENT-- Garnishment in aid of execution returned unsatisfted--Statutory procedure for reaching property or debts in another county.

Sections 500, 501, and 502, O. S. 1931, (secs. 753, 754, 755, C.O.S. 1931), provide a separate and distinct method of procedure by garnishment after execution is returned unsatisfied, by which the judgment creditor may reach garnishable property of the judgment debtor, or debts owing to him, when held in the hands of another in any county where the same may be found or held, and the district court of the county where the judgment was rendered acquires jurisdiction to reach such property, debts, or assets in any other county and to apply the same towards the satisfaction of the judgment, where the judgment creditor proceeds in conformity with the requirements of those sections in order to give the court jurisdiction in the matter.

3. SAME-- Order of court for garnishment to pay money into court--Error of court in refusal to permit judgment debtor on motion to vacate order to show execution was not issued and returned in good faith.

Where judgment creditor, after execution returned "nothing found," by a garnishment proceeding under sections 500, 501, and 502, O. S. 1931, garnisheed the bank account of the judgment debtor, and the trial court ordered the garnishee to pay the money into court, it was error for the trial court, on motion to vacate the order filed within the term, to refuse to permit the judgment debtor to show that the execution was not issued and returned in good faith, and that no attempt was made to levy such execution upon its property.

Appeal from District Court, Grady County; Will Linn, Judge.

Action by the Citizens-Farmers National Bank of Chickasha against the Voss Truck Lines, Inc.; garnishment in aid of execution returned unsatisfied. Motions of defendant to discharge garnishment and to vacate order for garnishee to pay money into court denied, and defendant appeals. Reversed.

Lee G. Gill and Chas. D. Scales, both of Oklahoma City, for plaintiff in error.

D. M. Cavaness and Melton, McElroy & Vaughn, all of Chickasha, for defendant in error.

HURST, J.

¶1 The Citizens-Farmers National Bank of Chickasha recovered money judgment against Voss Truck Lines and issued execution, which was returned "no property found." It then garnisheed the First National Bank & Trust Company of Oklahoma City, which answered admitting that defendant had in its checking account money in excess of the amount of the judgment. The trial court thereupon entered an order sustaining the garnishment and directing the bank to pay into court the amount of plaintiff's judgment. On the day following the making of this order, defendant filed a motion to discharge the garnishment, and thereafter filed a motion to set aside the order to pay the amount of the judgment into court. Plaintiff filed motions to strike both pleadings. On a hearing, the court denied the motions of defendant, and sustained those of plaintiff, and from these rulings defendant appeals.

1. Defendant's first contention is that the trial court did not have jurisdiction of the garnishee, or of the fund in its possession, and therefore was without power to render any judgment against the garnishee. He points out that our statutes provide three methods of garnishment after judgment: (1) Where execution has been issued but not returned; (2) after execution has been returned unsatisfied, and the garnishee is ordered to appear personally in court for examination; and (3) after execution is returned unsatisfied, and the garnishee is required to answer interrogatories served on him. He says that this garnishment necessarily falls within the first method because a summons was issued by the clerk, and was void because no bond was filed. Plaintiff contends that it was pursuing the third method, and that the proceedings substantially complied with sections 500, 501, and 502, O. S. 1931, 13 Okla. St. Ann. §§ 863, 864, 865. The affidavit filed by plaintiff was sufficient, but contained some unnecessary averments. The clerk issued a summons, such as is usually issued in garnishment at the beginning of an action, the form of which is prescribed by section 616, O. S. 1931, instead of anorder to answer interrogatories. The garnishee answered within the three days in which plaintiff was required to serve interrogatories upon it. Its answer showed funds in its possession belonging to defendant.

¶2 Defendant argues that the service of an order and interrogatories are essential to give the court jurisdiction under the sections of our statute above mentioned. It will be noted that those sections do not prescribe the form of the order. We think the summons, which required the garnishee to answer the one interrogatory contained therein, was a sufficient compliance with the statute. The fact that the interrogatory was contained in the body of the writ, instead of being attached thereto, is not shown to have deprived defendant of any substantial right. The trial court had jurisdiction of the defendant, and had rendered a judgment against it in the action.

¶3 A writ of garnishment in process. Emerson v. Emerson (1928) 130 Okla. 140, 265 P. 1078. And the rule that defects or irregularities in process which go to the form rather than to the substance are not jurisdictional has been repeatedly announced by this court. Jones v. Standard Lumber Co. (1926) 121 Okla. 186, 249 P. 343; Lawton v. Nicholas, Sheriff (1903) 12 Okla. 550, 73 P. 262; Springfield Fire & Marine Insurance Co. v. Gish, Brook & Co. (1909) 23 Okla. 824, 102 P. 708; Chaney v. National Bank of Commerce of Tulsa (1937) 179 Okla. 469, 66 P.2d 917; Chapman v. Norris (1935) 171 Okla. 154, 42 P.2d 487. And a judgment will not ordinarily be reversed for such defects. Section 252, O. S. 1931, 12 Okla. St. Ann. § 78. We conclude that the trial court by such process obtained jurisdiction 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...