82 N.W. 734 | N.D. | 1900
From the record transmitted to this court we gather the following facts: The action originated in a City Justice’s Court at the city of Fargo, in the County of Cass, on the 9th day of August, 1899. On that da}' said city justice of the peace issued a summons in the action proper, and, upon affidavit therefor first duly filed, likewise issued a garnishee summons against said garnishee. The return day named in both summonses was August 19, 1899. Both of the summonses, with said affidavit, were placed in the hands of Charles E. Wilson, Esq., for service; said Wilson then being the sheriff of Cass county. The return indorsed on the original papets, and filed with the justice before the return day, shows that each and all of said papers were served or attempted to be served by said Wilson on the 10th day of August, .1899. The return indorsed on the garnishee summons shows that the sheriff, acting officially, served the garnishee summons and said affidavit upon said garnishee within the County of Cass. It also appears by an affidavit made by said Wilson, and filed with the justice, that he served said affidavit and garnishee summons upon the defendant in the action, and that such service was made in the County of Traill, N. D. A further affidavit shows that said Charles E. Wilson served the summons in the action proper upon said defendant, Michael Shanks, in the County of Traill. Upon the return day the defendant’s counsel, having appeared specially for the purpose, moved in defendant’s behalf that the action proper be dismissed for the reason that service of process had not been made upon the defendant, and hence that the court had never acquired jurisdiction over the person of the defendant. Pending a decision of said motion to dismiss, counsel for plaintiff moved for the issuance of a second summons in the action proper against the defendant in said action. The city justice granted the motion to dismiss the action, and denied the motion to issue a second summons. From this judgment plaintiff appealed to the District Court upon questions of law alone, and the District Court entered judgment affirming the judgment of the city justice. Plaintiff appeals from said last-mentioned judgment to this court.
The principal question presented for our determination is whether the action proper was lawfully dismissed by the city justice. If the action proper was lawfully dismissed, the garnishment action, which is ancillary to the action proper, would fall with that action. It is likewise true that, if the motion to dismiss the action was based upon sufficient grounds, said motion was properly granted,
But appellant’s counsel very earnestly contends that the statute regulating the subject of garnishment in Justice’ Courts, found on page 125 of the Session Laws of 1897 (see, also, Rev. Codes 1899, § 6676a), and all pre-existing provisions of the Code which regulate the service of a summons issued by justices of the peace, have been altered and amended. Counsel contends that the act of 1897, supra, authorizes the service of a garnishee summons and affidavit in any county where the garnishee or the defendant may be found. Under the facts in this case, we do not find it necessary to determine whether this proposition of counsel is or is not legally tenable. The attack upon the jurisdiction of the justice over the person of the defendant is not made upon the ground that the garnishee summons was not served upon defendant in the proper county. For the purposes of this opinion, without deciding the point, it may be assumed that such service was properly made in Traill county. Upon such assumption, counsel, in his brief, uses the following language: “Can it be said that the garnishment summons and affidavit can be served upon the defendant anywhere in the'state, and not the summons in the action? What would be the object of serving the defendant with garnishment summons and affidavit, if he could not at the same time be served with the summons in the action?” These queries are such as might with propriety be addressed to the legislative branch of the government, in view of the fact that it is the conceded province of legislation — unless constitutionally restricted— to determine when and where, and by whom, legal process shall be served. The courts nevertheless are bound to observe the mandates of statutes as they find them, whether the same are or are not entirely logical in all their provisions. Turning to the act of 1897, we find nothing whatever in its provisions bearing upon the matter of serving an ordinary summons in an action commenced in a Justice’s Court; nor does the general statute regulating garnishment, to which the act of 1897 refers, touch upon that important subject. The original statute creating the remedy by garnishment prescribed the mode of serving a garnishment summons upon both the defendant and the garnishee, but that statute is silent as to the matter of serving the sitmmons in the action proper. It leaves that subject untouched, and strictly relegates the same to other provisions of the Code, which deals with the matter fully and in great
Again, counsel contend that the justice erred in denying plaintiff’s application for a second summons in the action proper. As far as we understand counsel, his contention on this point is that the remedy b)' garnishment is the same in its essence as that of attachment, and that, if this were an action in which an attachment had issued and been levied in Cass county upon defendant’s property, the plaintiff, under the terms of the statute governing attachment proceedings in Justice’s Court, would be entitled to a second summons. We regard this contention as whollv untenable. It is true that many points of resemblance may be found between these two provisional remedies, but under the Code of this state the procedure laid down is widely different, respectively, in each from that prescribed for the other. There is no pretense of an attachment proceeding or levy by attchment in this' case, and hence special provisions of law found only in the remedy by attachment can have no governing force in this action, or in the ancillary action herein. Our conclusion is that the judgment of the trial court must be affirmed.