2 Mont. 409 | Mont. | 1876
The appellant filed his complaint May 15, 1874, in the district court in Meagher county, to recover $6,000 on an implied contract. The record shows that the respondent was a banker and broker in the city and State of New York, and purchased there, at the request of the appellant, and for a valuable
It is admitted’ that the appellant complied with the provisions of the Civil Practice Act in the proceedings which have been described. It does not appear that the respondent had any property within the Territory. The persons upon whom the attachment writ was served were not examined respecting any property of the respondent, possessed or controlled by them, and no affidavits were filed by the appellant showing that their answers were insufficient or untrue. Section 153 of the Civil Practice Act provides that “ if the defendant recover judgment, * . * * * the order of attachment shall be dissolved and the property released therefrom.” When the court sustained the motion to quash the summons and dismiss the cause, judgment was thereby rendered for the respondent and against the appellant, and the discharge of the garnishees followed as a legal consequence. If the appellant wished to impeach the answers of the garnishees, or prove that the respondent had any property within the Territory, not exempt
Tbe court below did not acquire jurisdiction of this action by means of tbe attachment proceedings. No property was affected by tbe service of tbe writ upon tbe garnishees, and there is only one question for our consideration : Did tbe court obtain jurisdiction of tbe respondent by tbe publication of tbe summons? It. does not appear that copies of tbe complaint and summons were deposited in any post-office and directed to tbe respondent at bis place of residence. Section 41 of tbe Civil Practice Act provides that when tbe residence of a non-resident defendant is known and the summons is published, tbe court “ shall also direct a copy of tbe summons and complaint to be forthwith deposited in the post-office objected to tbe person to be served at bis place of residence.” Tbe appellant did not comply with this statute and did not obey tbe order of tbe court made in accordance with its provisions. It is held in New York under tbe same law that its terms must be pursued strictly and complied with fully in order to confer jurisdiction. Yoorhies’ Code, § 135, n. h, and cases there cited. An order which does not direct copies of tbe complaint and summons tó be mailed, when tbe residence of tbe non-resident defendant is known, is void. Yoorhies’ Code, § 138, n. d. Mr. Justice Field, in Galpin v. Page, 3 Sawyer, 94, says: “ When constructive service by publication in a personal action is authorized by statute- in place of personal citation, tbe rule prevailing in all courts is, that tbe statute must be strictly pursued. We are not aware that this doctrine has been denied in any State court.” Tbe proof of the service of tbe summons shall be “ in case of publication, tbe affidavit of tbe editor, publisher, or bis foreman, or his principal clerk, showing tbe same, and an affidavit of a deposit of a copy of tbe summons in tbe post-office, if tbe same shall have been deposited.” Civ. Pr. Act, § 43.
Tbe principles of strict construction which have been referred to must be applied to tbe statute under consideration. It is evident that a court cannot acquire jurisdiction of an action of this
Judgment affirmed.