Smith v. Wells , 70 S.D. 435 ( 1945 )

Plaintiff commenced this action against the defendant to recover a money judgment. The summons in the action was served on the defendant personally within this state, and judgment was entered by default. The plaintiff then commenced this proceeding in garnishment on the judgment. The garnishee summons and affidavit were served upon the garnishee defendant in Butte County, South Dakota, on December 28, 1943. They were served upon the judgment debtor on January 11, 1944, in the state of Oregon. The defendant applied for, and on February 7, 1944, obtained, an order of the circuit court dismissing the garnishment proceeding on the ground that the summons and affidavit in garnishment were not served on the defendant in the action within ten days after service thereof on the garnishee defendant. From this order the plaintiff in the garnishment proceeding has appealed.

Appellant contends that it was not necessary to serve the principal defendant within ten days after service on the garnishee defendant when personal service cannot be had on him within this state. Respondent contends that the ten day limitation applies to service of the garnishment papers on the principal defendant without the state as well as within the state. The question is one of statutory construction.

SDC 37.2805, so far as it is applicable to garnishment on a judgment, provides: "The garnishee summons and affidavit shall be served on each of the several garnishees named, in the manner provided for service of a summons in an action, * * * and, except when service of the summons in the action is made without the state or by publication, also on the defendant to the action in like manner, either before or within ten days after service on a garnishee. * * * Unless the garnishee summons is so served on the defendant or his attorney in accordance with the provisions of this section, the service on the garnishee shall become void and of no effect from the beginning."

By the provisions of the foregoing section, the garnishee summons and affidavit must be served on the principal defendant in the manner provided for service of a summons in an action. If the principal defendant resides within the state, he must be served personally therein, and must be so served within ten days after service on the garnishee. If the principal defendant is a resident of another state, he may be served by publication of the garnishment process in the manner authorized by general statute. The only exception to this requirement of the statute is the clause, "except when service of the summons in the action is made without the state or by publication." The summons in this action was served on the defendant personally in this state, not without the state or by publication, and therefore the exception noted above has no application to this case.

SDC 33.0812 provides that the summons in an action may be served by publication when the person on whom the service is to be made cannot be found within the state, and when he is a proper party to an action relating to real or personal property in the state. Here the defendant was a proper party to the garnishment action. He was not a resident of the state. The garnishment proceeding was one relating to personal property within this state. The court acquired jurisdiction of the action and of the res by personal service of garnishment process on the garnishee defendant within this state. Therefore, service on the principal defendant by publication was authorized in this case. Citizens State Bank v. Smeland, 48 N.D. 466, 184 N.W. 987.

SDC 33.0814 provides: "In any of the cases where service of summons, * * * by publication is authorized in lieu thereof the same may * * * be personally served upon any defendant in person without the state * * *."

Personal service on the principal defendant outside the state, as a substitute for service by publication, was authorized by the above section. Whether the service was made upon him within the ten day limitation contained in SDC 37.2805 depends upon the interpretation of SDC 33.0202 which states: "An action is commenced as to each defendant when the summons is served on him, * * *. An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them, usually or last resided * * *. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days."

This is a statute which fixes the time of the commencement of actions, and is of general application. Taylor v. McCarty,68 S.D. 510, 4 N.W.2d 816; Tabour Realty Co. v. Nelson, 56 S.D. 405, 228 N.W. 807; Citizens State Bank v. Smeland, supra.

Here the summons and affidavit in garnishment were delivered for service to the sheriff of the county in which the garnishee defendant resided, and in which the principal defendant usually or last resided until he left the state. The sheriff served the garnishee defendant on December 28th, 1943, but was unable to serve the principal defendant because of his absence. Then the papers were sent to the state of Oregon where they were served on the prinicpal defendant on January 11th, 1944. The service of garnishment process on the principal defendant was thereby completed within sixty days from the date of the delivery of such process to the sheriff of Butte County. Since the service of process was so completed, the time of the commencement of the action, according to the provisions of SDC 33.0202, was December 28, 1943, the date on which the process was delivered to the sheriff of Butte county for service.

Order reversed.

RUDOLPH, J., concurs.

SMITH, P.J., and ROBERTS, J., concurring specially.

POLLEY, J., dissents.