103 P. 1076 | Utah | 1909
This ease was before us on a motion to dismiss the appeal. (Bristol v. Brent, 35 Utah 213, 99 Pac. 1000.) The motion to dismiss was denied, and the parties at the last term of this court submitted the questions arising on the appeal. The appeal is- from an order or judgment discharging the garnishee, and the facts upon which the order was based are sufficiently stated by Mr. Chief Justice Straup in his opinion on the motion to dismiss the appeal, to which reference is made.
The garnishee alone appears in the action. Counsel for garnishee, stating their contention in their own language, insist “that the want of jurisdiction both of the person of the garnishee and of the property attempted to be held appeal's upon the face of this record cannot be
The return of the officer showing service of the writ of garnishment, and this is the only service the officer made, is as follows:
“State of Utah, County of Salt Lake — ss: I hereby certify and return that I received the within and hereunto annexed writ of attachment on the 20th day of October, A. D. 1907, and by virtue of the same on the 20th day of October, A. D. 1907, I served a garnishment on the Atchison, Topeka and Santa Fe Railway Company, per C. F. Warren, Gen’l Agt., in the county and city of Salt Lake, state of Utah. At the same time I paid the garnishee fee of $2.00 and took receipt therefor which receipt is hereto attached and made a part of this return. Life of said writ having expired X now return same without further service by me. Dated Oct. 18, 1907. [Duly signed by sheriff.]”
Was tbis return of service of. tbe writ of garnishment sufficient to invest the court with jurisdiction of the res so as to authorize it to proceed with the case? Bood on (Garnishment, section 271, states the rule which is
*112 “All that has been said of the service of the writ applies with equal force to the return, for the return is the officer’s report of his doings under the writ. It should b'e indorsed upon the writ, or made upon a paper annexed thereto; for the writ and return constitute essentially one record, and must go together. Whatever the statute requires to he done in the service of the writ the return must show to have been done; and, unless it shows that due service has been made, the court has before it no proper evidence upon which to base any further proceedings. Its absence cannot be cured by the garnishee’s signed admission of due service.”
Tbis return constitutes tbe evidence, and is the only proper evidence of service. The service, in order to invest the court with jurisdiction, must comply with the statute. Under our statutes debts or credits may be attached in two ways. By subdivision 6, section 3073, Comp.
It is contended by counsel for appellant that the objections to the service and jurisdiction come too late, since they were not interposed until after the garnishee had appeared and answered to the writ of garnishment, and had by its answer admitted that it was indebted to the defendant; that by its appearance and answer the garnishee waived all defects, if any, in the service of the writ of garnishment, and thus conferred jurisdiction, not only over its person, but of the res as well. Upon this question the authorities are apparently in hopeless conflict. We have already held that the garnishee may not waive jurisdictional defects by a general appearance; that is, he cannot confer jurisdiction over the res by a voluntary appearance. (Cole v. Utah, Sugar Co., 35 Utah 148, 99 Pac. 681.) Respecting
After a very careful examination of all tbe authorities that we could find relating to tbe subject, and after mature consideration, we have come to tbe conclusion that tbe doctrine of waiver by tbe garnisbee does not extend to jurisdictional defects, and that a failure to comply with tbe statute in making service upon tbe garnisbee is jurisdictional for tbe reason that it is only by a strict compliance with tbe statute in respect to service that tbe court acquires jurisdiction of tbe debt owing by tbe garnisbee to tbe defendant, and this debt constitutes tbe res which tbe garnisbee may' not voluntarily surrender or place in tbe custody of tbe law. It is tbe mandate of tbe law when complied with, and not tbe act of tbe garnisbee, that confers jurisdiction upon tbe court over tbe res. While tbe garnisbee may surrender bis own person to tbe jurisdiction of tbe court, be may not voluntarily surrender the property of tbe defendant, although it be merely an intangible thing, such as a debt owing by tbe garnishee. Hood, in bis excellent work on Garnishment, states tbe law upon this subject as follows:
“Sec. 268. The other proceedings being valid, due service of summons upon the garnishee is the commencement of a suit in the name of the plaintiff against him, and operates as an attachment, in his hands, of the property or debt alleged in the affidavit, and in respect of which he is summoned, placing it, substantially, in custodia legis.
“Sec. 269. It is also essential to the validity of the service that it be made in the manner prescribed by the statute under which*117 it issues, usually by reading or showing the original to the garnishee, and giving him a marked or certified copy, together with the statutory fee for his answer.
“Sec. 2.70. The-garnishee may make many admissions and waivers without endangering his protection. He may waive payment of the fee allowed him by law, and his appearance and answer without objection will cure all defects in the process which do not go to the jurisdiction of the subject-matter.
“Sec. 271. Such waivers by the garnishee cure all defects in the service or process as a personal summons, but not as an attachment upon the property. Appearance and submission under void service depend upon a personal right to waive service, which the garnishee, as such, does not possess. He can waive his own rights,, but cannot waive the defendant’s rights. He cannot, voluntarily appear and substitute his creditor’s creditor for his own because that goes to jurisdiction of the subject-matter, not to jurisdiction-of the person. Fatal defects in the service or process cannot- be-cured by any act of the garnishee.”
“Sec. 275. But, the remedy being extraordinary, and so liable to-abuse and injustice, unless properly regulated, the courts enforce a rigorous compliance with all the provisions of the statute; and a failure in any will be fatal to the proceedings, and deprive the court of jurisdiction if previously acquired. All rights acquired under the proceedings depend upon compliance with the requirements of the statute.”
In 20 Cyc. 1047, tbe rule is stated' as follows:
“The service of a writ or summons in garnishment is regulated entirely by statute, which must be strictly followed in order to confer jurisdiction upon the court, and in the majority of jurisdictions actual service upon the garnishee is required, and failure to comply with the statute in respect to service is not waived by the voluntary appearance of the garnishee so as to confer jurisdiction upon the court. However, the garnishee’s appearance and answer without objection will cure all defects in the service of the writ or summons which are not jurisdictional in their nature.”
In 2 Sbinn on Attachments, see. 610, tbe author says:
“Garnishment is a compulsory novation which the law can alone initiate by the intervention of its own substantial appointments. The court does not obtain jurisdiction over the debt sought to be seized without sufficient service upon the garnishee, for acceptance-of service by the garnishee is not an attachment. The garnishee by appearing and answering cannot waive objections to the jurisdiction.”
From wbat we bave said it follows that all tbe other assignments are of no importance. We bave considered nothing except tbe proceedings up' to and including
Nor the foregoing reasons, and upon the authorities cited, we are of the opinion that the order or judgment discharging the garnishee should not be unconditionally affirmed. It is therefore ordered that the case be remanded to the district court, with directions to set aside the order discharging the garnishee and to permit the appellant to amend the return, of the officer showing the manner of service upon the garnishee, and, if the court is satisfied that the service was in fact made as required by statute, then the court shall pro