Merchants C. Service v. Chouteau Co. Bk.

The legislature undoubtedly had good reason for requiring a separate writ for each county. Whatever the reason for it, it is the law. And if the law means anything it is that a writ has no force and can be of no effect outside of the county for which it is issued. And that being true, anything done under it in an outside county is as if there were no writ in the hands of the officer acting. (Bybee v. Ashby, (Ill.) 2 Gilman, 151; 43 Am. Dec. 47; Edwards v. Case, 78 Or. 220, 152 P. 880;Pillsbury v. Smyth, 25 Me. 427; Corrigan v. Kahn,120 Misc. 161, 198 N.Y. Supp. 785; Huber v. Moran-GreenbergCorporation, 120 Misc. 104, 198 N.Y. Supp. 434; Wade on Attachment, sec. 124; Freeman on Executions, sec. 65; 23 C.J. 404, sec. 182.) And in the levy upon property in the hands of a third party, as in garnishment, the voluntary answer or surrender of the property by the trustee, that is, the third party in whose custody the property may be, does not validate the levy. The trustee has no right to surrender the property under such circumstances, and his so doing cannot operate to the disadvantage of the judgment debtor. (Wade on Attachment, sec. 336; Freeman on Executions, sec. 65; Drake on Attachment, 7th ed., sec. 451B; Raymond v. Rockland Co., 40 Conn. 401;McDonald Co. v. Moore, 65 Iowa, 171, 21 N.W. 504;Fletcher v. Wear, 81 Mo. 524; Insurance Company v. Friedman Bros.,74 Tex. 56, 11 S.W. 1046.)

A defect in an attempted levy, such as in this case, cannot be remedied by amendment of the writ. The proper case for amendment as to the officer directed is where the writ is directed to an improper officer but executed by the proper officer, such as where the property sought to be reached is held under attachment by one officer and the execution writ is directed to another officer but is executed by the officer who holds under the writ of attachment. Or where a writ issues to the sheriff of the county and should have been issued to a constable but was delivered to and executed by the constable. In such cases there is no question about a mistake having been made in the issuance of the writ inasmuch as there was only the one officer who could execute it. The situation in such cases is entirely different from that in the instant case where the writ was regularly issued and was in proper form in every respect and was directed to a proper officer for its execution. The distinction is made clear in Freeman on Executions, section 65, where it is said: "Where a writ is directed to an improper officer, but executed by the proper officer, the error in the direction does not vitiate the writ, and may be cured by amendment. * * * Where the error is in directing the writ to the sheriff of one county, where it is intended to be delivered to the sheriff of another county, there is some doubt whether it can be amended so as to support proceedings taken in the latter county. In Illinois, it has been held that this is not a proper case for an amendment, and that, as the sheriff acted in the absence of any writ directed to him, a levy and sale made by him are incurably void." (Citing Bybee v. Ashby, supra. See to the same effect, 23 C.J. 422, sec. 199.)

The cases holding to a contrary view have nothing but specious argument and excuses rather than good sound reasons for the conclusions reached. As illustrative, in the case of Christy v.Springs, 11 Okla. 710, 69 P. 864, the court bases its conclusion on the fact that the sheriff had acted on the writ as though it were directed to him, and held that, inasmuch as the sheriff made no objection, the question of improper or irregular process was immaterial. The court also speaks of the irregularity as being curable by amendment, citing as authority First Nat. Bank v. Franklin, 20 Kan. 264, 265; Pecotte v. Oliver,2 Idaho, 251, 10 P. 302; Clark v. Sawyer, 48 Cal. 133, and Freeman on Executions, section 62. None of these citations is authority for the application to the facts in that case of the rule as to amendment of irregular process. The case does not appeal to me as well reasoned nor as well grounded in authority in its discussion of levies under erroneous or irregular writs. Furthermore, in that case there was return of the sale of the property levied on, which was real estate, and confirmation of the sale by the court. The sale was questioned in an action to quiet title commenced many years after, and was really a collateral attack on the decree of the court confirming the sale. Therefore the case is not in point here.

Upon close study of the authorities cited and relied upon by the appellant, it will be found that practically all of them either are not sound in the line of reasoning employed or that the facts involved and the questions presented are fundamentally different from those in the instant case.

And even though it should be held that the defect in the levy here could be remedied by changing the writ, the proper practice was not pursued in procuring the amendment. In Freeman on Executions, section 63a, the author says that where the defect sought to be remedied is clearly merely a clerical error and the case is free from doubt respecting the writ intended to be issued, the practice pursued in procuring the amendment is not material, but "If, on the other hand, the amendment sought is of so substantial a character, or of such doubtful propriety, that the rights of the parties may be affected by it, or, instead of being a matter of course, it is a matter upon which reasonable judges may differ, certainly the parties to be affected by it should be brought before the court by some notice warning them of the proposed action and giving them an opportunity to resist it. In the absence of such notice, they should not be held bound by the order granting leave to amend, nor by the amendment made in pursuance thereof. We assume, therefore, that the proper practice of a person desiring to obtain leave to amend a writ in any substantial particular, and where leave does not follow as a matter of course from a mere inspection of the record, is to give written notice to all persons apparently to be prejudiced by the amendment, that an application will be made to the court at a time stated for leave to amend the writ in a manner designated in such notice." In the present case the order amending the writ so that it was changed to read in its direction "To the Sheriff of Chouteau County" was made without any notice to the bank, the defendant in this action, and more than two years after the attempted levy on which it is sought to hold the bank, and after the commencement of the present action which was then pending in another court and in another county. Clearly the amendment would be prejudicial to the bank, the respondent in this appeal, and for lack of notice did not become, and is not, binding, upon the respondent.

The plaintiff failed to make out a case against the defendant. There was no legal levy and plaintiff acquired no lien upon the defendant's money in the bank. No matter what the bank's answer to the writ was, nothing was acquired and no right was acquired by the plaintiff by the levy attempted. Had the bank answered that it had money belonging to the defendants, such answer would not have validated the levy and given the plaintiff any lien. "Garnishment rests wholly on judicial process, and depends on the due pursuit of the steps prescribed by law for its prosecution. It can borrow no aid from volunteered acts of the garnishee." (Drake on Attachments, 7th ed., sec. 451B.)

Inasmuch as there was no legal service of process the bank was under no legal obligation or duty to make any answer, and therefore, no matter what its answer was, no liability could flow therefrom. And where the answer here, and which was purely voluntary in the eyes of the law, was that it was not indebted to the execution debtors, there can be nothing on which to predicate the claim of recovery from the bank. In the case of Insurance Company v. Friedman Bros., supra [74 Tex. 56,11 S.W. 1047], the very same question arose. The court there reached the same conclusion as we have, and the language employed in its opinion so clearly states the rule and the reason for such conclusion that it may well be adopted here. The court there says:

"Before a judgment can be rendered against one sought to be made liable as garnishee, against his will, the court must have such custody or control over the thing on which the liability depends as will enable it to render a judgment which will bar any claim of the original defendant against the garnishee on account of the disposition made by him of the thing in pursuance of the judgment.

"Such control or custody cannot be given by any answer one sought to be charged as a garnishee may file, and can only exist when the steps made requisite by the statute have been taken to bring the garnishee before the court. * * *

"Such an obligation [to answer] does not exist until process has been served upon him in accordance with the requirements of the statute.

"It cannot arise from his denial of liability, however made, nor upon an issue made upon his answer, in the absence of service of proper process as required by law."

And even in a case where the garnishee's return is such as to give the court jurisdiction to enter judgment against the garnishee for the amount stated in the return as owing by the garnishee to the execution debtor, if there has not been a proper legal levy giving jurisdiction over the res as against the judgment debtor, and the matter is still within the control of the court, the court should relieve the garnishee from liability on his improvident return and thereby avoid the wrong of fastening a double liability upon the garnishee. This is a salutary rule and which has been applied by courts in other states in such situations. In the case of Fletcher v. Wear, supra, speaking of the right of recovery against the garnishee in such circumstances, the court says: "But as the sole object of the proceeding in garnishment is to obtain an order binding on the property and credits of the attachment debtor, and not to collect the plaintiff's demand from the garnishee, who owes him nothing whatever, the misfortune of the proceeding resulting in an order or judgment binding on the garnishee alone, which will constitute no protection against a second payment of the same credits, ought to be avoided by the courts, if they can do so while they have control of the proceedings."

The contention that the judgment debtor is the only one who may question this levy is without merit. The judgment debtor had no cause for complaint — nothing was taken from him. He could have no standing in court on the question.

This case is an example of the confusion that may follow when the law is not strictly complied with in proceedings of this nature. The statute was enacted for the purpose of making clear the way and the steps to be taken to the end that such confusion may be avoided. Here it is proposed that it shall be optional with the sheriff to whom the improper papers are delivered whether the law shall be complied with, and further, that in such circumstances the garnishee shall have the option of saying whether the determination by the sheriff shall be of binding effect on the parties concerned. If such disregard of the statutes be sanctioned and such procedure be condoned, the statutes will lose their effectiveness and the purposes of their enactment will be defeated.

In view of our disposition of the case upon the ground of the invalidity of the levy because of the writ being directed to the sheriff of another county, it is not necessary to consider the other question raised as to whether a deposit in the bank belonging to one of the judgment debtors carried under the name of H.B. Nottingham could be reached under a notice of attachment of property and credits belonging to and debts owing to "Hildia Bernard Nottingham and Beulah Hall Nottingham." While under a judgment against several defendants property of anyone or all may be reached on execution, in levy upon a bank account of one of the defendants it may well be that the bank should have better notice than as given here so there be no question that individual accounts as well as the joint account of the defendants is sought to be reached. The bank in such a case is put in a difficult position. It is accountable not only to the depositor but to those who may hold checks against the account. It must decide instantly what to do, for its liability under the writ occurs the moment it is served. Apparently the bank here construed the notice as a demand upon a joint account of the two judgment debtors. That is indicated by its answer that it "had no property in its possession, nor under its control belonging to said judgment debtors."

I concur in the opinion of Mr. Justice Morris and in his conclusion that the judgment appealed from should be affirmed. I have expressed my views in order to show additional reasons for sustaining the lower court and to make my position clear.