Edwards v. Case

152 P. 880 | Or. | 1915

Opinion by

Mr. Chief Justice Moore.

1. Our statute declares generally that a writ of at-. tachment shall be directed to the sheriff of any county in which property of the defendant may be, and that several writs may be issued at the same time to the sheriffs of different counties: Section 298, L. O. L. The sheriff to whom the writ is directed and delivered shall execute the same without delay. A debt is attached by leaving with the debtor a certified copy of the writ and a notice specifying the property upon which a lien is thus sought to be established.

“If it be rights or shares in the stock of an association or corporation, or interests or profits thereon, then with such person or officer of such association or corporation as this Code authorizes a summons to be served upon”: Id., § 300, subd. 3.

It will thus be seen that a writ of attachment, directed to a particular sheriff, is of no force or effect outside the county of which he is the chief executive and administrative officer: Wade, Attach., § 124.

2. The writ in the case at bar not having been directed to the sheriff of Multnomah County, Oregon, that officer was not authorized to serve it; and, this being so, no lien upon any debt due from the insurance company to Mrs. Case was created by the delivery of the notice of garnishment, based on the command to attach her property.

3, 4. It will be remembered that such notice was addressed to Henry B. Tickner, and warned him that all debts, etc., in his hands or under his control and especially an insurance policy issued by the Fireman’s Fund Insurance Company, belonging to and owned by Mrs. Case, was thereby attached and garnisheed. A notice of garnishment should be directed to the person, firm or corporation having possession of property of, or owing a debt to the defendant named in the writ of attachment, warning the garnishee that such goods and chattels or choses in action are attached and garnisheed to answer the plaintiff’s demands, when evidenced by a judgment. A notice of garnishment to attach a debt due from a corporation should, like a summons or any other process, warn such artificial being that a sum of money due from it, or to mature in favor of a defendant in an action has been attached and garnisheed. A debt due 'from a corporation is undoubtedly an “interest” therein, whereby a lien is impressed upon the obligation by leaving with the person or officer of such corporation upon whom a summons may be legally served a copy of the writ of attachment and a notice specifying the property attached: Section 300, L. O. L. Such notice, however, should be addressed to the corporation, and not to such person or officer: Drake, Attach., § 470. The garnishee sought to be charged was not so addressed, and, in the absence of such direction, another reason exists for concluding that no lien upon any debt that might be due Mrs. Case was created by delivering to Henry B. Tickner, the attorney in fact of the Fireman’s Fund Insurance Company the notice mentioned.

5. It is argued by plaintiff’s counsel, however, that the attorney in fact and the general adjuster of the. insurance company having given certificates in response to such notice of garnishment, whereby it appears that their principal had insured Mrs. Case’s stock of goods against loss or damage by fire in the sum of $1,000, jurisdiction of the debt was thereby secured, and, this being so, an error was committed in denying the relief sought against the Fireman’s Fund Insurance Company. The procedure prevailing in the United States of securing by attachment the payment of a judgment which might subsequently be obtained in an action evidently had its origin in the customs of the city of London, and though such practice was very ancient, it was not of common-law origin but in derogation thereof: Drake, Attach., § 1.

“Attachmentproceedings,” says Mr. Justice Thayer in Schneider v. Sears, 13 Or. 69, 74 (8 Pac. 841, 843), “are statutory, and unless the statute is strictly pursued, no right is acquired under them.”

To the same effect see, also, Case v. Noyes, 16 Or. 329, 333 (19 Pac. 104); White v. Johnson, 27 Or. 282, 297 (40 Pac. 511, 50 Am. St. Rep. 726).

“A garnishee,” says Mr. Justice Bean in Altona v. Dabney, 37 Or. 334, 336 (62 Pac. 521, 522), “stands in the position of a disinterested stakeholder, and therefore, according to the great weight of authority, cannot waive service of the process by which the property in his hands, or the debt due from him to the principal debtor, is garnisheed. ”

In Barr v. Warner, 38 Or. 109, 111 (62 Pac. 899), it is said:

“A garnishee may waive many irregularities in the notice of garnishment, and by his certificate or answer in response thereto submit himself to the jurisdiction of the court, and thus become in privity with, and in effect a party to, the judgment which has been or may be rendered against his creditor (citing authorities); but, while a garnishee may waive jurisdiction of his person, he cannot, by voluntarily appearing, waive the defendant’s rights, or substitute the latter’s creditor for his own, because that relates to the jurisdiction of the subject-matter, which can be acquired only in the manner prescribed by law.”

To the same effect is the ruling in the case of Fraley v. Hoban, 69 Or. 180, 186 (133 Pac. 1190, 137 Pac. 751), and Price v. The Boot Shop, 75 Or. 343 (146 Pac. 1088).

We conclude, therefore, that the certificates of the attorney in fact and of the general adjuster of the insurance company were insufficient to confer jurisdiction of the subject matter of the debt undertaken to be garnisheed.

6. No other evidence appears to have been offered by the plaintiff than the answers of the insurance company to her written interrogations, and since such responses do not disclose a debt for any specific sum as being due Mrs. Case on account of the loss of or damage to her stock of millinery by fire, or admit any liability therefor, no judgment could have been rendered against the garnishee, based on such answers: 20 Cyc. 1116; Drake, Attachment, § 659; Rood, Garnishment, § 314.

For these reasons, the judgment should be affirmed, and it is so ordered.

Affirmed.