O'Rourke v. C., M. & St. P. R. ( 1880 )

Adams, Oír. J.

l, jtorbigsimpeachment oí: garnishment. A judgment in form was rendered against Kennedy, but plaintiff insists that it is void for want of jurisdiction. The service of notice upon Kennedy was made by leaving a copy of the notice at a J 0 public house, where he had been previously stopping as a guest. The return of service stated that the copy was left at Kennedy’s “ last usual place of abode.” The return showed upon its face due service as appears from the statute of Minnesota, introduced in evidence. But the fact was, as is shown in evidence, the copy was not left at Kennedy’s last usual place of abode, nor was he a resident of Minnesota, but was’ residing with his family in Iowa, and was at the time be was a guest of the public house in Minnesota, where the copy was left. The statute of Minnesota provides for service by publication, when service cannot be had in the State and the defendant is a non-resident. The service in this case was clearly insufficient.

But the defendant insists that something having-been done with a view to making service, and a return thereof made, it is not a case of absolute want of service, but of defective service merely, and that a judgment obtained upon defective service cannot be attacked collaterally. The defendant cites and relies upon Cooper v. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 Iowa, 77; Long v. Burnett, 13 Iowa, 28; Bonsall v. Isett, 14 Iowa, 309; Good v. Norley, 28 Iowa, 188; Daugherty v. McManus, 36 Iowa, 657; Woodbury v. McGuire, 42 Iowa, 339.

The doctrine of those cases is that where a question arises upon the sufficiency of the notice, or sufficiency of the return as showing due service, it is for the court to determine such question, and when the question is determined, even though it bo erroneously, it becomes an adjudication.

But in the case at bar the plaintiff does not rely upon any defect in the notice or return as showing due service, but upon a fact which lies behind the return of service, in no way disclosed by the record, and upon which it cannot be presumed that there was any judicial determination.

The court only determined that the notice was sufficient and that it appeared from the return to have been duly served. In this the court was evidently correct, and no question upon that point is now raised.

But where a foreign judgment is relied upon, it is competent for the party resisting it to show facts extrinsic to the return, or inconsistent with it. Webster v. Hunter, 50 Iowa, 215. In'the case at bar the facts disclosed show that what was done with a view to making service did not constitute service. The court, then, never obtained jurisdiction of the person of Kennedy, and the judgment against him was void. Now a garnishee can be charged for only such amount as is adjudged to be due the plaintiff from the princqjal defendant. If the garnishee pays before judgment against the principal defendant, such payment cannot be pleaded in bar to an action brought directly upon the claim. In our opinion the judgment of the Circuit Court must be.

Affirmed.