12 Or. 492 | Or. | 1885
— This appeal is from a judgment of the Circuit Court for the county of Multnomah, rendered in favor of the respondent against the appellant in certain garnishee proceedings.
It appears from the transcript that on the 13th day of May, 1885, the respondent, a private corporation, commenced an action at law against one L. H. Frank, in said court, to recover
“ I hereby certify that I received the within writ of attachment on the 14th day of May, 1885, aud executed the same on the 14th day of May, 1885, at Portland, in the county of Multnomah, in said State, by serving a garnishment upon Koshland Bros., as required by law, garnishing all debts, property, moneys, rights, dues, credits of every nature in their hands or under their control, belonging or owing to the said L. H. Frank, to which the said Koshland Bros, made an answer thereto, said answer being hereto attached and made a part of this return.”
The answer referred to is as follows : —
“ I hereby return that we have no property in our hands at this time, nor have we any property, debts, money, dues, credits of any kind or nature belonging to L. H. Frank.
[Signed] “Koshland Bros.”
Thei’e seems to have been a notice signed by the sheriff, directed to said Koshland, to the effect that, by virtue of said writ of attachment, all debts, etc., as mentioned in said return, had been attached and garnished, and. that said answer was indorsed thereon. Said notice bore date the 14th day of May, 1885. Upon June 1, 1885, the said Circuit Court gave judgment in said action at law in favor of said respondent, and against said Frank, for the amount of said debt, and on the 9th day of June, 1885, on motion of the respondent’s attorneys, the judgment was amended by the insertion of a further adjudication, to the effect that the property of said Frank taken under writ of attachment be sold to satisfy said judgment.
Prior to the date of the amendment, on the 6th day of June, 1885, the respondent’s attorneys made and filed an affidavit showing that said action at law had been commenced; that the judgment therein had been recovered on said 1st day of June, 1885; that on the 14th day of May, 1885, the said writ of attachment had been issued, and in which it was stated that garnishee process was duly served upon said Koshland Bros.,
“ It appearing to my satisfaction, upon the plaintiff’s affidavit herein, that Koshland Bros, have property of the defendant L. H. Frank, I hereby order that said Koshland Bros, appear before me at Circuit Court, Department No. 1, on the 13th day of June, 1885, to answer concerning the same.”
The affidavit and order were served upon Alfred F. Sears, Jr;, an attorney of the said court, who admitted service thereof in writing in the following manner:—
“State of Oregon, 1 County of Multnomah, j ss‘
“Due and legal service of the within affidavit, together with copy of same, served upon me this 6th day of June, 1885, in this county and State.
' ■ “Alfred F. Sears, Jr., of garnishee’s attorneys.”
(Same venue.) “ Due and legal service on me of the within order, together with copies of the same, this 6th day of June, 1885, within this county and State, is hereby aéknowledged.
“ Alfred F. Sears, Jr., of garnishee’s attorneys.”
On the 10th day of June, 1885, the said respondent’s attorneys filed in the office of the clerk of the said Circuit Court, written allegations in the form of a complaint, in which, among' other things, is alleged the issuance of the said attachment, the service of a certified copy thereof, together with a notice upon said Koshland Bros;, whereby all debts, etc., as mentioned in said return, were duly levied upon and garnished to satisfy said judgment, and the making of the answer thereto of said Koshland Bros., which is hereinbefore set out. It is further alleged in said allegations that said Koshland Bros, had property in
The appellant’s counsel contended, upon the argument, that the said order should have been served upon the garnishee personally, and that no jurisdiction was acquired over the person oi the garnishee by the service made upon Mr. Sears. There is no doubt about the correctness of that position; and it was conceded by the respondent’s counsel upon the argument. But the latter insisted that said garnishee voluntarily appeared in the proceeding, and thereby gave the said court jurisdiction. That an attorney should attempt to serve original process in any case, except in the manner pointed out by the Civil Code, is very-strange, indeed. Koshland was the party required to answer-concerning the property, and disobedience to the order would subject him to punishment for contempt. He was the only party to be served, and nothing less than personal service upon him should have been permitted. The first step to be taken in the proceeding was to bring him into court-. After the order-was allowed, the proceeding had a distinct character, and it was just as important to make personal service of process in such case as in that of the commencement of an action or suit. The service of the summons in the latter proceeding could as well be-dispensed with as that of the order in the former. If it did not appear affirmatively that Mr. Sears was, in fact, the garnishee’s attorney, that they both were before the court when a motion-was made for judgment and the matter was continued, as shown by the nune pro tuno journal entries, f?r several days, upon Mr.
The appellant’s counsel claim that an appearance in such case •can only be made in the mode pointed out in the Code, section ■520, and that it requires a formal notice in writing to constitute ¡such appearance. That would doubtless be so if the right of an .attorney to be heard in an action, suit, or proceeding were challenged by the opposing party, but where the right is conceded, the attorney has been heard, and the client has had the benefit of the hearing, the latter would not be in a very favorable position to claim that the appearance was unauthorized. The .adverse party might have objected to the appearance, or have waived the objection, and if he chose to take the latter ■course, his opponent ought not to be allowed to complain. It is very seldom that aqy formal notice of appearance is served -.upon the opposite party in any case; and when an attorney is ^authorized to manage a party’s legal business, and has done so, and his adversary has made no objection on account of his neglect to give written notice of appearance, the party should •certainly not be permitted to take advantage of the inform•ality.
It was urged upon the part of the appellant that the record of ■the court could not properly be corrected after the adjournment of the term, so. as to show that he appeared by attorney at the time before referred to. It is generally agreed that courts have a continuing power over their records not affected by the lapse of time, and the more liberal rule recognizes the right to resort ,to any .satisfactory evidence within their reach in order to ascertain theaccuracy of such records. I can discover no good reason why a-court cannot at any time, when the rights of third parties are not involved, so amend its records as to make them conform to the truth. There had been a neglect in this matter to record the full proceedings had when the first application was made for judgment herein for want of answer, and the court,
The more serious question in the case involves the right of the court to give judgment against the appellant on the garnishee proceedings. I was very strongly impressed in the outset that there had been no legal service of the said attachment. Subdivision 3 of section 147 of the Civil Code, provides how property shall be attached when in the hands of a third person. A certified copy of the writ and a notice specifying the property attached must be left with such third person.
I could not understand how such a notice could be given unless the sheriff was able to identify the property, and was loth to believe that a notice to the effect that the sheriff had attached all the debts, property, etc., as mentioned in said noticej delivered to the appellant, would answer the requirements of the statute, when it did not specify the property attached. But I find that the court of appeals of the State of New York, in O’Brien v. Mechanics & Traders F. Ins. Co. 56 N. Y. 52, has held that such a service under a similar statute is valid. It appears that the question was for a long time a mooted one in that State, but that said decision has fully settled it. I am satisfied that the construction given in O’Brien v. Mechanics & Traders F. Ins. Co. renders the statute upon the subject more effectual, and I am inclined to follow it, though it has the appearance of judicial legislation.
The proceedings in such a case are specifically pointed out in the Code of 1872, and the respondent appears to have complied with the law as it then stood. It authorized a plaintiff in such a case,■•when the certificate given by the person alleged to have property of the defendant in his possession was unsatisfactory, to apply for fin order requiring such person to appear and be examined on oath concerning the same, and to serve upon him written allegations and interrogatories touching any of the property liable to attachment as the property of the defendant-; and if he failed to answer, the plaintiff, among other things, could at any time after the entry of the judgment against the defendant in the action, have judgment against the garnishee for want
Under that act the property may be sold upon execution issued on the judgment in the main action, and the respondent availed itself of the benefit of the provision as shown by the amended judgment entry of June 9, 1885, adjudging that the property of the defendant taken under the writ of attachment be sold to satisfy said judgment. By that entry the respondent secured every right in the premises it was entitled to. After obtaining a judgment for the sale of the property to satisfy the debt, it was not entitled to a general judgment against the garnishee for the value of the identical property. That would be repugnant to sense and justice. I think the Act of October 25, 1878, has superseded the provision in the garnishee proceedings authorizing the entry of judgment against the garnishee, and that the latter proceedings are only effectual as a means of discovery. Proceedings of that character being statutory, will not be extended by implication. The remedy given by the latter statute in the particular case referred to is a complete substitution for that given in the prior one, and if the two were allowed to stand would lead to absurdity and injustice, as the proceedings in the case under consideration fully prove. After the respondent obtained a judgment that the property attached be sold to satisfy the debt, the court certainly had no right to render a general judgment against the appellant for the amount of the debt. The two proceedings were for the same purpose, to reach the said property or its value, and apply it to the payment of the debt j and when it had been effectually reached in the action the garnishee proceedings were terminated as completely as they would have been had the defendant Frank come forward on the 9th day of June, 1885, and paid off the judgment against him.
I can see no alternative but that the judgment against the
The judgment appealed from is reversed, with costs.
The chief justice took no part in the decision.
