18 Mo. App. 86 | Mo. Ct. App. | 1885
The principal and controlling question presented by record is, did the circuit court acquire jurisdiction over the subject matter so as to authorize it to render judgment against Pope as garnishee ?
This question must be answered in the negative. Th return of the sheriff fails to show that he made the declaration to the garnishee, required by the statute, essential to bind the property or debt in his hands. The return is not distinguishable in principle from those in the eases of Norville v. Porter, 62 Mo. 310; Keane v. Bartholow et al., 4 Mo. App. 507; and Brecht v. Corby, 7 Mo. App. 300. In all of which it is held that the return is insufficient to bring the res into court so as to authorize a judgment against the garnishee.
It would be a needless repetition to re-state the reasons and authorities on which those cases rest. It is sufficient to say, that the decisions are so pertinent and satisfactory as to be conclusive to our minds.
It can make no difference that the garnishee answered admitting funds of the defendant debtor in his hands. The summons and notice to the garnishee perform a twofold office. The summons is to bring him into court. This is essential, to give the court jurisdiction over the person of the garnishee. The notice, by which the sheriff is required to declare to the garnishee that he attaches in his hands the debt, etc., is the means by which the thing — the property or debt — is brought into court, and is the indispensable pre-requisite to confer jurisdiction over the subject matter. The proceeding is quasi in rern.
It may be conceded, for the purposes of this ease, shat the garnishee might waive the service of summons on himself, or any right that is personal to himself; yet, he has no power to waive a right “which relates not to himself, but to the property or credit. The owner of the property, whoever he may be (and the court has no right to assume at the outset that the defendant in the execution, or writ, is the owner), has the right to insist that his property, whether in another person’s hands or not,
It is suggested by the learned counsel for respondent that the courts in ruling as they have on this question, entirely overlooked section 4, pages 664-5, Wagner’s Statutes (sect. 2520, Rev. Stat. 1879), which provides, that notice of garnishment, under that chapter, shall have the effect to bind all the property, etc., under the control of the garnishee, not only at the time of the service of notice on him, but “which may come into his possession, etc., between that time and the time of filing his answer.” It is then asserted by counsel that “this chapter does not require the sheriff to make the declaration in serving a garnishment that the supreme court maintains.”
We do not perceive the lore this criticism. In the first place the proceeding at bar is under an attachment and not under a writ of fieri facias. And in the second place, under the chapter concerning garnishment (sect. 2518) it is expressly jirovided that. “The service of garnishment in such case, and the subsequent proceedings against and in behalf of the garnishee, shall be the same as in the case of garnishment under an attachment.”
It follows that the judgment A fck-j euxuh cuurt must be reversed and the cause remanded with directions to the circuit court to discharge the garnishee.
