C. C. Kelly Banking Co. v. J. M. Robinson-Norton Co. ( 1893 )

Woods, J.,

delivered the opinion of the court.

The contention of appellee is that the clerk of a circuit court is absolutely powerless to issue a writ of garnishment under the various provisions of the code of 1892 on that subject. His functions are limited, it is said, to inserting in a writ of attachment a command to summon the person suggested as garnishee; but this can he do only at the time of issuing a writ of attachment. Under § 136 of the code of 1892, according to this view, the sheriff alone can issue writs of garnishment.

This interpretation is too literal and narrow. Every attachment writ is a writ of garnishment also. It may not be completed so as to embody the names of those to be summoned as garnishees, but, immemorially, it has served the pui-poses of, and been held and treated as, a writ of garnishment.

Section 2131, code 1892, clearly authorizes the clerk to issue a writ of garnishment as part of the writ of attachment, and this has been the only writ of garnishment authorized or known to our law prior to the adoption of the code of 1892. This § 2131, code of 1892, is a literal transcript of the law long prevailing in this state, and found in § 2422, code 1880. The same statute, in the same words, is found in § 1430, code 1871, and substantially in the code of 1857, and Hutchinson’s code of 1848.

¥e will not be authorized to give § 136, code 1892, which authorizes the officer receiving the writ of attachment to “ summon, as garnishees, by writs of garnishment, to be issued and served by himself,” such rigid .and literal construction as will destroy the force and effect of the language of §§ 2131, 134 and 135, code 1892, as the same have been understood and acted upon in the courts of the country for a half-century or more.

The writ of the C. C. Kelly Banking Company, which is thought to be void by the intervenors herein, was an imperfect alias writ of attachment and garnishment. Property insufficient to satisfy the Kelly Banking Company’s debt having been levied on under a first writ, under § 135, code 1892, the attaching creditor applied to the clerk, who issued his first writ for an alias writ, and the clerk issued what he mistakenly supposed to be the proper writ. He issued a writ of garnishment, and omitted the alias writ of attachment. The writ issued was defective, but not void. It might have been amended on motion.

To make the new provision found in § 136, code 1892, harmonious with §§ 134,135 and 2131, we must confine the operation of § 136 to those cases where the officer receiving a writ of attachment, with no suggestion contained in it of any garnishment, may be requested to summon, as garnishees, persons whose names may be then suggested to him. His action, in issuing writs of garnishment in such cases, will harmonize with the long understood and applied meaning of the other sections touching the issue of writs of attachment and garnishment. His action will thus supplement rather than supersede the never-before-assailed power of the clerk of the circuit court to issue attachment and garnishment writs. He will issue writs of garnishment when the clerk has not.

Reversed, and remanded.