Merchants Credit Service, Inc. v. Chouteau County Bank

An action for damages. November 7, 1935, the plaintiff in the action at bar was given a default judgment by the district court for Cascade county against Hildia Bernard Nottingham and Beulah Hall Nottingham; September 17, 1936, a writ of execution was issued out of that court directed to the sheriff of Cascade county, but sent to the sheriff of Chouteau county and was regularly served by the latter on the Chouteau County Bank, the defendant in the action at bar; the levy on the bank was without results and the writ was returned by the sheriff "wholly unsatisfied."

6. See 3 Cal. Jur. 15; 3 Am. Jur. 805.

The complaint in this action was filed in Cascade county March 20, 1938; summons was issued the same day and served the 31st; April 8th the defendant filed a general demurrer to the complaint, and at the same time filed a motion for change of venue from Cascade to Chouteau county. The motion for change of venue, not being opposed, was allowed. Hearing on the demurrer was noticed June 7th for hearing June 20th; on the last named date the defendant withdrew the demurrer and filed a motion to dismiss the action; which motion was, on September 14th denied; September 17th the plaintiff, without notice to the defendant, obtained an order from the district court for Cascade county in the Nottingham Case amending the writ of execution, the effect of which amendment is the vital and sharply contested question involved in the controversy.

When the case was at issue and came on for trial in the district court, the parties stipulated that a jury be waived and the cause submitted to the court on an agreed statement of facts on briefs without oral argument. The facts agreed upon were, in substance, as follows:

1. That November 7, 1935, the plaintiff recovered judgment by default in the Eighth Judicial District in and for Cascade county against Hildia Bernard Nottingham and Beulah Hall Nottingham, which judgment is still held and owned by the plaintiff.

2. That on or about September 17, 1936, a writ of execution was issued out of the district court for Cascade county, directed to the sheriff of that county, but sent to the sheriff of Chouteau county, and was levied at the direction of the plaintiff by the sheriff of that county September 22, 1936, upon the defendant in this action.

3. That October 28, 1938, approximately two years after the alleged levy was made, an order was issued by a judge of the district court of Cascade county amending the execution writ. The wording of the order was as follows: "The word ``Cascade' appearing in the direction of the said Execution Writ shall be changed to the word ``Chouteau', and the word ``said' appearing on the same line shall be changed to the word ``the', so that the said line of direction shall read: ``To the Sheriff of the County of Chouteau, Greeting'". The defendant had no notice or knowledge of the motion to amend the writ.

4. That when the levy was made on the defendant, return was made by E.W. Harris, vice president of the defendant bank, to the effect "the said bank had no property in its possession, nor under its control, belonging to said judgment debtors," and the writ was returned wholly unsatisfied.

5. When the levy was made on the defendant bank September 22, 1936, it had in its possession and under its control a deposit of $509.96 standing in the name of H.B. Nottingham.

6. H.B. Nottingham and Hildia Bernard Nottingham is one and the same person and Hildia Bernard Nottingham at times used and signed his name at H.B. Nottingham.

When the cause came on for hearing January 13, 1940, the stipulated facts were submitted to the court, as agreed and the matter was taken under advisement. May 21, 1940, judgment was made and entered in favor of the defendant and it was allowed costs in the sum of $25.50. The appeal is from the judgment.

A single specification of error is assigned under which a number of contentions are advanced, but we deem it unnecessary to go further than to determine whether or not a writ of execution directed to the sheriff of one county but sent to and served by the sheriff of another county and ordering him to levy upon property in his county creates a lien upon the property in the latter county. If such service was not valid service, plaintiff's action must fail.

Section 9417, Revised Codes, provides in part: "The writ of[1] execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the clerk, and must be directed to the sheriff." This means, of course, the sheriff of the county where process is to be served.

Section 9423, Revised Codes, provides: "Where the execution is[2] against the property of the judgment debtor, it may be issued to the sheriff of any county in the state. Where it requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties." This statute is mandatory in form. (In re Farrell, 36 Mont. 254, 92 P. 785.)

Section 9260, relating to attachments, which in all essentials are practically the same as levies under a writ of execution, provides in part: "The writ must be directed to the sheriff ofany county in which property of such defendant may be."

In Keith v. Ramage, 66 Mont. 578, 589, 214 P. 326, 330, this court said: "Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder."

In State ex rel. O'Connor v. McCarthy, 86 Mont. 100, 108,282 P. 1045, 1048, where the court had under consideration a case involving the power of a public officer and whether a particular duty prescribed by statute was mandatory or directory, it was said: "The legislature used the verb ``must,' which denotes ``obligation,' as, ``we must obey the laws' (Webster), and, when used to impose a duty, it is mandatory and peremptory, excludes discretion, and imposes upon the officer an ``absolute duty to perform the requirements of the statute in which it is employed.' (People v. Thomas, 32 Misc. 170, 66 N.Y. Supp. 191, 193; Inre Farrell, 36 Mont. 254, 92 P. 785, 787; Ex parte Smith,152 Cal. 566, 93 P. 191; Reinert Bros. Const. Co. v.Tootle, 200 Mo. App. 284, 206 S.W. 422.) In the Farrell Case, Mr. Chief Justice Brantly, speaking for the court, said: ``It may be laid down as a general principle, that the limit of the power of a public officer is the statute conferring the power, and what further power is necessarily implied in order to effectuate that which is expressly conferred. In the performance of ministerial duties expressly enjoined, however, when the mode of performance is prescribed, no further power is implied, nor has the officer any discretion.'"

In Fousek v. DeForest, 90 Mont. 448, 459, 4 P.2d 472,475, it was said, "When an attachment is made upon personal property in the possession of a third person (a garnishment), as here, it is sufficient to comply with the statute."

In Sharman v. Huot, 20 Mont. 555, 52 P. 558, 559, 63 Am. St. Rep. 645, it was said: "Where the law expressly directs that process shall be in a specified form, and issued in a particular manner, such a provision is mandatory, and a failure on the part of the official, whose duty it is to issue it, to comply with the law in that respect, will render such process void."

Referring briefly to other jurisdictions we find in Sidwell v. Schumacher, 99 Ill. 426, 433, it was said: "The legislature or the people, through the constitution, have the unquestionable right to say of what process shall consist, and when they have declared that it shall be of a specified form, by implication all other forms are prohibited."

In Gordon v. Camp, 3 Pa. 349, 45 Am. Dec. 647, it was said: "No case has been decided, that an execution directed to the constable of a particular township, can be handed over by him to the constable of another township, to whom it was not directed, and that the latter could legally execute it. * * *"

7 C.J.S. Attachment, section 204, reads: "The writ must be executed by the executive officer of the court, or of some court of similar jurisdiction in another county or district, to whom it is directed, and whose duty it is to obey the mandate contained in the process, and service of the writ by an officer not legally authorized is void."

In 4 Am. Jur. 872, section 528, it is said: "As a general rule, a writ of attachment can be levied only by the officer to whom it is directed, who, of course, must by law be duly authorized so to act, an attachment by an officer without authority of law being no attachment at all."

In 23 C.J. 404, section 181, it is said: "The direction in the writ to the officer, usually the sheriff, is what gives him his authority."

Under the writ involved here, the sheriff of Cascade county[3, 4] could have made a valid garnishment on property in that county, but in the hands of the sheriff of Chouteau county it was just another slip of paper. Service of process is provided for by statute. No statute can be found in our legislative Acts that authorizes a sheriff to serve a writ of execution directed to the sheriff of another county. A sheriff's power to serve a writ is derived from a writ addressed to himself. Outside of his bailiwick a sheriff has no more power to serve process than a private citizen. The writ served on the defendant could be legally served only by the sheriff of Cascade county, or his duly authorized deputy, and legal levy on property thereunder could be made only in Cascade county.

On the question of the amendment of the writ: The sixty days[5] mentioned in section 9419, Revised Codes, in which the writ must be served prescribe the life of the writ. If it be served and returned, or if it be not served within the sixty-day period, it is, in either case, functus officio. (1 Third Freeman on Executions, sec. 107; 23 C.J. 214, pp. 428, 429; note at page 181 of 2 A.L.R.) The amendment to the writ was not sought nor made for more than two years after it was served originally, and after amendment it was not served anew. The question here is not as to an amendment to a defective writ after it had been served, but an attempt to change a writ by amendment subsequent to service that was good in one county as issued but not good in the county where it was served. The fact is that the writ after amendment was, in effect, a new writ, and no attempt was made to serve the new writ.

Plaintiff relies chiefly upon the case of Kipp v. Burton,29 Mont. 96, 97, 74 P. 85, 63 L.R.A. 325, 101 Am. St. Rep. 544, where it was held that a writ of execution upon which the clerk of the court failed to impress the seal of the court could be amended by impressing the seal thereon after service. What this court thought of that ruling is clearly expressed in an opinion by Chief Justice Brantly in In re Farrell, 36 Mont. 254, 263,92 P. 785.

There is no merit to the contention that the "garnishee waived[6] defects in the process by answering." All the authorities cited in support of this contention are cases in which the question involved was as to alleged waiver by a party defendant to an action who appeared in court and thereafter attacked service of process. Plaintiff confuses the return made to the writ in the case at bar with the appearance in court of a party to an action. There is no relation between the two "appearances," if the return to the writ could be called an appearance. "Waiver is an intentional relinquishment or abandonment of a known legal right." (67 C.J. 289.) Only a general appearance in court in a regular action waives defects in process. (3 Am. Jur. 805, sec. 35; Enterprise Sheet Metal Works v. Schendel, 55 Mont. 42,51, 173 P. 1059; Swords v. Occident Elevator Co., 72 Mont. 189,195, 232 P. 189.)

We deem further consideration of plaintiff's contentions unnecessary as they have no material bearing upon the questions involved.

The judgment is affirmed.