Haase v. Corbin , 2 Mont. 409 ( 1876 )

Blake, J.

The appellant filed his complaint May 15, 1874, in the district court in Meagher county, to recover $6,000 on an implied contract. The record shows that the respondent was a banker and broker in the city and State of New York, and purchased there, at the request of the appellant, and for a valuable consideration, certain United States bonds of tbe value of $6,000, and converted them to his use. A summons was issued and placed in the hands of the sheriff, who made his return stating that he could not find the respondent and that the respondent did not reside in Meagher county. The appellant made subsequently an affidavit showing, among other facts, that the residence of the respondent was in the city of New York, and an order was made by the court requiring the publication of the summons, and that copies of the complaint and summons be deposited in the post-office and directed to the respondent at New York. The summons was published in July and August, 1874, in the Herald, at Helena, in this Territory, the newspaper which had been designated for this purpose. At the time of the filing of the complaint the appellant filed the affidavit and undertaking for an attachment, and the writ was issued to the sheriff of Lewis and Clarke county. The persons upon whom this writ had been served made written answers to the effect that they had no goods, effects or credits in their possession or under their control belonging to the respondent. The counsel for the respondent appeared specially for the sole purpose of objecting to the jurisdiction of the court, and moved to quash the summons and dismiss the cause. The motion was sustained and the garnishees were discharged.

It is admitted’ that the appellant complied with the provisions of the Civil Practice Act in the proceedings which have been described. It does not appear that the respondent had any property within the Territory. The persons upon whom the attachment writ was served were not examined respecting any property of the respondent, possessed or controlled by them, and no affidavits were filed by the appellant showing that their answers were insufficient or untrue. Section 153 of the Civil Practice Act provides that “ if the defendant recover judgment, * . * * * the order of attachment shall be dissolved and the property released therefrom.” When the court sustained the motion to quash the summons and dismiss the cause, judgment was thereby rendered for the respondent and against the appellant, and the discharge of the garnishees followed as a legal consequence. If the appellant wished to impeach the answers of the garnishees, or prove that the respondent had any property within the Territory, not exempt from execution, be should have acted before tbe motion was determined. Tbe appellant did not furnish tbe court with information upon the subject, and we must accept tbe statements of tbe garnishees as true. Richards v. Stephenson, 99 Mass. 312 ; Tryon v. Merrill, 116 id. 299.

Tbe court below did not acquire jurisdiction of this action by means of tbe attachment proceedings. No property was affected by tbe service of tbe writ upon tbe garnishees, and there is only one question for our consideration : Did tbe court obtain jurisdiction of tbe respondent by tbe publication of tbe summons? It. does not appear that copies of tbe complaint and summons were deposited in any post-office and directed to tbe respondent at bis place of residence. Section 41 of tbe Civil Practice Act provides that when tbe residence of a non-resident defendant is known and the summons is published, tbe court “ shall also direct a copy of tbe summons and complaint to be forthwith deposited in the post-office objected to tbe person to be served at bis place of residence.” Tbe appellant did not comply with this statute and did not obey tbe order of tbe court made in accordance with its provisions. It is held in New York under tbe same law that its terms must be pursued strictly and complied with fully in order to confer jurisdiction. Yoorhies’ Code, § 135, n. h, and cases there cited. An order which does not direct copies of tbe complaint and summons tó be mailed, when tbe residence of tbe non-resident defendant is known, is void. Yoorhies’ Code, § 138, n. d. Mr. Justice Field, in Galpin v. Page, 3 Sawyer, 94, says: “ When constructive service by publication in a personal action is authorized by statute- in place of personal citation, tbe rule prevailing in all courts is, that tbe statute must be strictly pursued. We are not aware that this doctrine has been denied in any State court.” Tbe proof of the service of tbe summons shall be “ in case of publication, tbe affidavit of tbe editor, publisher, or bis foreman, or his principal clerk, showing tbe same, and an affidavit of a deposit of a copy of tbe summons in tbe post-office, if tbe same shall have been deposited.” Civ. Pr. Act, § 43.

Tbe principles of strict construction which have been referred to must be applied to tbe statute under consideration. It is evident that a court cannot acquire jurisdiction of an action of this nature if a copy of the summons has not been mailed properly. This proceeding is as essential to the rights of the parties as that which requires the publication of the summons in a newspaper. Distinct affidavits of the proof of these jurisdictional facts are necessary before the service of the summons can be deemed complete. The transcript contains the proper affidavit, showing the publication of the summons in a newspaper according to law and the order of the court, but there is no proof that a copy of the summons or complaint has been deposited in the post-office as prescribed by the statute. “ These affidavits constitute the proof of service.” Sharp v. Daugney, 33 Cal. 512. The ruling of the court below dismissing the cause for want of jurisdiction is affirmed.

Judgment affirmed.