9 Minn. 55 | Minn. | 1864
By the Court
Judgment was obtained against the St. Anthony Falls Water Power Company by Hinldey and Egery, on the 3d day of October, 1861, in the District Court of Hennepin County. In this action W. D. Washburn appeared as the attorney for the Plaintiffs. On the 22d day of October, 1862, more than a year after the entry of this judgment, garnishee proceedings were commenced against D. Morrison & Co., by the Plaintiffs. In these proceedings Messrs. F. R. E. & W. B. Cornell, appeared as the attorneys for the Plaintiff's. The first objection made by the Appellant is, that this appearance was irregular without a substitution of Messrs. Cornell in the place of Mr. Washburn.
This point is not well taken. The general power of an attorney ceases with the entry of judgment for his client. It was continued by the common law for special purposes for a year and a day after judgment, and authority in the attorney is by statute prolonged for certain periods after judgment for specified purposes, and for those purposes only can he bind Ms client. 3 John, 361; 5 Cow., 446; 3 Barb., 584. By sec. 10, of ch. 82, Comp. Sts., on the subject of the “ authority of an attorney and its duration,” the genoral common law powers of an attorney are conferred in
The next subdivision of the chapter is entitled “ change of attorney.” Under this head it is provided, in section 18, that “ the attorney in an action or special proceeding may be changed at any time before judgment or final determination, as follows.” Then follows the mode of making a change, and giving notice to the adverse party, and until this is complied with the former attorney is to be recognized.
It will be seen that all this has reference to a period prior to the entry of judgment — leaving the party at liberty to employ another attorney after judgment in any proceeding to collect the same. If a new attorney appears, and any doubt is entertained about his authority from the party, secs. 11, 12, of ch. 82, above cited, afford a ready means of deciding that point. There was no objection to the appearance of the Messrs. Cornell. - The counsel cites sec. 79, of ch. 61, p. 567, as to the manner of satisfying a judgment of record, as proving that an attorney has authority for two years 'after judgment. What we have said above as to the special powers conferred bjr statute on attorneys after judgment applies to this section. It is not necessary here to speak of the apparent conflict between this last cited section and subdivision two of sec. 10, of ch. 82, before referred to, on the time within which an attorney may enter satisfaction of a judgment of record. It does not affect this case.
The affidavit upon which the garnishee summons was issued, is not contained in the paper books furnished to the court, so we will not consider any question upon its sufficiency or insufficiency. As the garnishee act gives the form of it in section one, it is difficult to see how any one could err in drawing it, unless they
Had the attorney power to issue the summons, or was it necessary that it should be allowed by a judicial officer ? The counsel cites the case of Morrison v. Lovejoy, 6 Minn. Rep., 183, where we held the issuing of an attachment to be a judicial act. "We think there is a clear distinction between the cases. The statute authorizing the process of attachment provides that whenever certain facts shall appear by affidavit, &c., the warrant may issue. Comp. Sts., p. 550, sec. 144. Under this act it has been held that it was not sufficient to draw the affidavit in the words of the statute, but facts and circumstances must be stated from which the officer could find the legal conclusions. 1 Minn. Rep., 82; 3 Id., 29. The finding of facts upon evidence, and awarding process upon such decision, is clearly a judicial act. In the case last cited the distinction was taken between the affidavit required in a justice’s court for an attachment and that required in the District Court. In the former the words of the statute may he followed, and in the latter the facts and circumstances must be set out. All that is required by the garnishee act is, simply to file an affidavit, stating that the deponent u has good reason to believe, and does believe” that the garnishee has property, &o., or is indebted, &e. That done, and the summons issues, of course. There is nothing to find except that the affidavit is filed in accordance with the statute. The affidavit is a condition precedent to the issuance of the summons, and the attorney acts at his own risk. If he does •not file the affidavit required, his proceedings will be without jurisdiction. Prince v. Hendy, 5 Minn. Rep., 347. But we do not think the exercise of any judicial function is called into action in the proceeding. No allowance of the summons is therefore necessary.
Was the form of the summons in compliance with the constitution and laws ? By art. 6, sec. 14, of the State Constitution, “ the style of all process shall be, The State of Minnesota.” The word process, as used here, we think, means all such writs, Avhether original, mesne or final, by which the authority of the
The next question is, has this defect been waived by the appearance of the garnishee without objection-? Was there no question about the service of the notice required by the statute upon the Defendant in the original action, we would have no hesitation in saying that it had. It must be remembered that the court already possessed jurisdiction over the person of the Defendant by reason of the judgment in the principal suit, and of his leviable property to the amount of such judgment, without any further notice to him. Under the former garnishee act ( Comp. Sts., ch. 80,) the whole proceeding was carried on without any notice being given to the principal Defendant. The new act [Laws og 186O, ch. 70,) provides that a coj>y of the summons,' together with a notice to the Defendant, stating the time, place and manner of service thereof, upon the garnishee, and signed, •c%c., and requiring such Defendant to appear and take part in the examination, shall be served upon the Defendant at least ten days before the day of examination, &e. By section 10 the court is not allowed to proceed with the examination of the garnishee in the absence of the Defendant, until the Plaintiff makes proof of service of the summons and notice upon the Defendant. There is always good reason why the Defendant in such cases should have notice of the proceedings that are to affect Iris property; but we can see no reason why he has any interest in the nature of the proceeding, by which jurisdiction is obtained over the garnishee. What possible difference can it make to him whether the garnishee waives the fees he is entitled to or not, except that if he does waive them it is so much saved to the Defendant, for he has to pay them in the end. The only interest we can see that
The garnishees were the firm of D. Morrison & Co. The summons was served upon D. Morrison alone, who admitted service and waived fees on the back of the summons in the name of D. Morrison & Co. On the return day of the summons it does not distinctly appear whether the garnishees appeared or not, but as the examination was postponed on account of the Defendants not having been yet notified, we are to presume that they did, which would be sufficient evidence of the service of the summons or a waiver by them of formalities. The counsel for the Defendant objects that Morrison had no authority to accept service for the firm of D. Morrison & Co. The service of a garnishee summons is, in effect, the commencement of a suit, and by sec. 38, of ch. 60, of the Comp. Sts., suits may be commenced against partners by the firm name, and a service upon one will bind the joint property of the firm. If any question arises as to what can be made upon the garnishee judgment against D. Morrison & Co. it will be time enough then to decide it — the service was sufficient to predicate a judgment upon. When the adjourned day arrived Morrison appeared, and disclosed without objection.
The next question is, whether the proof of service of notice upon the Defendants was sufficient to authorize the court to proceed with the examination of the garnishee in their absence. There is no pretence that any service was made upon the Defendant, Franklin Steele. The affidavit had reference to service upon the St. Anthony Falls Water Power Company alone. Service of a summons upon a corporation may be made by delivering a copy thereof to the president or other head of the corporation, secretary or managing agent thereof. Comp. Sts., 538, sec. 53. It cannot be pretended that any service which would be sufficient for the commencement of an action, would not suffice in the case of such
The disclosure of the garnishee shows that the debt due was for rent of mills. He says it was due from the firm of D. Morrison & Co., at the time of the service of the summons, to wit, October 21, 1862.
The objection that it does not appear to which Defendant the garnishees were indebted, may be answered, that the proceeding was between the garnishees and the Water Power Company— the Defendant Steele not being served, the former was therefore the Defendant spoken of by the garnishee; and wo may also add, _ that this motion is a confession of the fact by that Defendant,, for all purposes of the motion.
The order must be affirmed.