First National Bank v. Smith, 80 W. Va. 678

First National Bank v. Smith

80 W. Va. 678 | W. Va. | 1917

Lynch, President:

On a judgment in its favor against Lee 0. Smith and Sarah J. Smith, recovered in the circuit court of Hancock county, *679the First National Bank of New Cumberland sued out an execution to be levied upon the goods and chattels of the judgment debtors, and thereon suggested that by reason of the lien of the writ there was a liability on the Eureka Pipe Line Company for the amount of the judgment. The auditor, on behalf of the pipe line company, accepted service of the process. It had no notice of the pendency.of the proceeding other than that furnished by such acceptance of service. In response to the command of the summons, it appeared specially to move, and did move,' to quash the return of service endorsed on the process. This motion the court sustained, and, upon the joint application of the parties, certified here the question of the propriety of such ruling. upon the sufficiency of the return, under the authority of §1, ch. 135, Code.

As the principles recognized and discussed in Atkins v. Evans, 76 W. Va. 17, are controlling upon this certification, they need not be repeated. The reasons assigned are stated logically and forcefully in the opinion, and leave no room for hesitation in the application of these principles to the acceptance of service of process either in an attachment proceeding or upon an execution issued upon a judgment. Each proceeding is in effect one in rem, a species of seizure of the property of the debtor in the hands or under the control of one in nowise bound to satisfy the claim of the creditor. Its ultimate purpose is to appropriate such property to the ex-tinguishment of the lien of an execution. To this end ,no court can acquire jurisdiction except by actual service of the process on the garnishee, or upon the auditor for him when the garnishee is a foreign or nonresident domestic corporation.

Therefore, the ruling upon the motion to quash the return was proper, and our order will approve and affirm it.

Order affirmed.