Smith v. Wells

I concur in reversal of the order on the ground that the garnishment statute did not require service of the garnishee summons and affidavit upon the principal defendant who is a nonresident and hence the ten day provision has no application.

Garnishment is an ancillary proceeding and if jurisdiction of the defendant is obtained in the main action the several steps in the garnishment proceeding are not jurisdictional as to him. 38 C.J.S., Garnishment, § 162; Rood on Garnishment, § 280; First Nat. Bank v. Knight, 127 Okla. 20, 259 P. 565; Wright v. Southern R. Co., 141 N.C. 164,53 S.E. 831; Zimek v. Illinois Nat. Casualty Co., 370 Ill. 572,19 N.E.2d 620; Chapman v. Foshay, 184 Minn. 318; 238 N.W. 637; Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S. Ct. 61, 62, 69 L. Ed. 288. The United States Supreme Court in the case last cited said:

"The established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take `notice of what will follow,' no further notice being `necessary to advance justice.' Ayres v. Campbell, 9 Iowa 213, 216, 74 Am. Dec. 346; Reid v. [Northwestern] Railway Co., 32 Pa. 257, 258; Foster v. Young, 172 Cal. 317, 322, 156 P. 476; McAnaw v. Matthis, 129 Mo. 142, 152, 31 S.W. 344.

"There is no more reason why the judgment debtor should be entitled to notice before the issue of an execution provided by statute as supplemental process to impound, in satisfaction of the judgment, choses in action due to him which cannot be reached by an ordinary execution. No established rule of our system of jurisprudence requires that such notice be given. On the contrary, it has been frequently held in the state courts that in the absence of a statutory requirement, it is not essential that the judgment debtor be given notice and an opportunity to be heard before the issuance of such garnishment. High v. Bank of Commerce, supra, [95 Cal. 386] p. 387 (30 P. 556), [28 Am. St. Rep. 121]; Coffee v. Haynes, 124 Cal. 561, 565, 57 P. 482, 71 Am. St. Rep. 99; Ketcham v. Kent [Circuit Judge], 115 Mich. 60, 63, 72 N.W. 1110; Hexter v. Clifford, 5 Colo. 168, 173; Kesler v. St. John, 22 Iowa 565, 566; Phillips v. Germon, 43 Iowa 101, 102; Smith v. Dickson, 58 Iowa 444, 445, 10 N.W. 850; Pistchal v. Durant, 168 A.D. 100,102, 153 N.Y.S. 735. And see Daigle v. Bird, 22 La. Ann. 138, 139; Chanute v. Martin, 25 Ill. 63, 65; Cross v. Brown, 19 R.I. 220,33 A. 147;Winner v. Hoyt, 68 Wis. 278, 286, 32 N.W. 128. In High v. Bank of Commerce, supra, in which the constitutionality of a garnishment statute was challenged because it did not require notice to the judgment debtor before issuance of the writ, the court said: `So far as the judgment debtor is concerned, he cannot complain; he is a party to the judgment, and is fully aware of the legal effect of it, viz., that what his debtors owe him can be applied, by proper proceedings in the action which is still pending, to the satisfaction of his judgment debts; and due process of law has been had to make him aware of that fact. If, then, anything is due from his debtor, he is not injured if it is so applied. If nothing is due him from such debtor, then the matter is of no concern to him."

SDC 37.2805 provides that the garnishee summons shall be served on the garnishee "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" and provides that "when the defendant shall have appeared in the action by attorney, such service may be made upon such attorney or upon the defendant." Unless defendant or his attorney is served "either before or within ten days after service on a garnishee", the service on the garnishee becomes "void and of no effect from the beginning."

Service on the principal defendant is not a prerequisite of jurisdiction. The statute recognizes this. It provides that service may be made upon the attorney representing the defendant. The appearance in the action by attorney cannot be regarded as an appearance in the garnishment proceedings and hence a distinct jurisdiction over the principal defendant in such proceeding is not intended. Service upon the garnishee is the jurisdictional act, and service of the garnishee summons and affidavit upon the defendant in the action is merely notice to him of a proceeding in rem. The failure to give such notice when required operates under the express terms of the above section to terminate jurisdiction over the property sought to be impounded.

Notice to the principal defendant of the garnishment proceedings is not required in all instances. On the contrary, section 37.2805, supra, provides that service of the garnishee summons and affidavit need not be made on the defendant to the action "when service of the summons in the action is made without the state or by publication"; that is to say, in an action against a nonresident defendant served in a manner prescribed by statute, notice of the garnishment proceedings need not be given. The garnishment statute of the state of Wisconsin is the source of our own and section 37.2805, supra, is in form identical with the corresponding section of that state, except that the service on the garnishee becomes void "unless the garnishee summons be so served upon the defendant or his attorney, or the proof of service * * * show that, after due diligence, such service cannot be made within the state." St. Wis. 1933, § 267.06. The statute in this state omits the provision concerning proof of service. The supreme court of that state in an early case, Winner v. Hoyt,68 Wis. 278, 32 N.W. 128, 130, observed that the statute "does not contemplate any service of garnishment being made upon the principal defendant debtor without the state, or by publication." A defect in the proof of service operates in that state to deprive the court of jurisdiction. Smith, Thorndike Brown Co. v. Mutual Fire Ins. Co., 110 Wis. 602, 86 N.W. 241. To avoid such effect, the provision was perhaps omitted. It seems quite clear that no other change in the effect of the section was intended.

It appears from the record that the principal defendant in the interim between the service of the summons in this action and the commencement of garnishment in aid of execution has ceased to be a resident of this state. It is not the meaning of the statute that because he was a resident of this state at the time of the commencement of the principal action he must now be served with notice of the garnishment proceedings. This is out of harmony with purpose and intent of the statute. The statute, in my judgment, intends the distinction with respect to necessity of service to be drawn between residents and non-residents and not between personal and substituted or constructive service in the main action.

SMITH, P.J., concurs in this opinion.