133 Minn. 326 | Minn. | 1916
Plaintiff obtained a judgment against defendant in the district court of the county of Richland in the state of North Dakota. Subsequently plaintiff brought this suit in the district court of Ramsey county in this state upon the North Dakota judgment, and garnisheed John P. Galbraith and the Northwestern Jobbers Credit Bureau. The defendant was not a resident of this state and the summons was served upon him by publication. At the time fixed for the garnishee disclosure, an affidavit that defendant was a nonresident and not within the state was filed by plaintiff as provided by G. S. 1913, § 7865. Galbraith, who is the manager and treasurer of the Northwestern Jobbers Credit Bureau, made the garnishee disclosure for himself and also for that company. From the disclosure it appears that defendant, who had been in business at Hankinson in North Dakota, became financially embarrassed and made an assignment to Gal
Upon the disclosure and all the files and records, plaintiff made an application under G. S. 1913, § 7870, for leave to file a supplemental complaint against the garnishees. This application was denied on the ground that notice of the motion had not been properly served upon the defendant, and on the further ground that plaintiff is estopped from maintaining this proceeding by a judgment rendered by the North Dakota court. Plaintiff appealed.
The section of the statute cited requires that notice of the motion be served upon both the defendant and the garnishee, but contains no provision as to the manner in which such notice shall be served. No question is made as to the sufficiency of the seryice upon the garnishees, but the garnishees insist that personal service must be made upon the defendant before the court has jurisdiction to permit the filing of the supplemental complaint. If this contention be well founded, then in all cases in which a creditor has impounded property by garnishment but the garnishee denies liability, if the defendant does not appear and cannot be found, the creditor can proceed no further, but must abandon his attempt to reach his debtor’s property. The garnishees contend that such is the state of the law; that, if defendant cannot be found, plaintiff cannot proceed against them, unless they see fit to admit liability. We are not of this opinion. We think our law is not so defective that a debtor by disappearing can put it beyond the power of his creditors to reach property of his which is in the possession of some one who will not admit it belongs to him. In the present case, defendant had left his former home in Hankinson, and after extended and persistent search and inquiry could not be found, so that personal service was impossible. If constructive
Although the impounding of defendant’s property by garnishment and the service of the summons upon him by publication, did not give the court jurisdiction to render a judgment which could be enforced against him personally, it did give the court jurisdiction to render a judgment which could be enforced against the property so impounded, and which would be valid and binding against him to that extent. Cousins v. Alworth, 44 Minn. 505, 47 N. W. 169, 10 L.R.A. 504; Daly v. Bradbury, 46 Minn. 396, 49 N. W. 190; Spokane Merchants Assn. v. Coffey, 123 Minn. 364, 143 N. W. 915; Smith v. Smith, 123 Minn. 431, 144 N. W. 138, 52 L.R.A. (N.S.) 1061. The service of notice of the application for leave to file a supplemental complaint was not necessary to bring the defendant into court, for he was already in court so far as the property seized by the garnishment was concerned. As said in Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 846, the notice “is not process, nor does it bring the party into court. The proceeding is already pending by service of the garnishee summons; and the application for leave to serve and the service of the supplemental complaint are only further continuations of such pending proceeding.” See also S. E. Olson Co. v. Brady, 76 Minn. 8, 78 N. W. 864; Aultman, Miller & Co. v. Markley, 61 Minn. 404, 63 N. W. 1078.
Our present law authorizing garnishee proceedings and prescribing the procedure therein was originally enacted in 1860, being chapter 70, p. 244, of the laws of that year. After providing for the manner in which the garnishee summons should be issued and be served upon the garnishee, the act provided in section 3 that “a copy of the summons together -with a notice * * * stating the time, place and manner of service thereof upon the garnishee * * * and requiring such defendant to appear
In construing the revised laws reference may be had to the report of the commission which drafted them, as the legislature undoubtedly gave weight to such report in enacting them. Reference may also be had to the history of the law and the purpose sought to be accomplished thereby. United States & Canada Land Co. v. Sullivan, 113 Minn. 27, 128 N. W.
In the present case we have the presumption that the law remained unchanged, and the report of the commission that they believed the change in wording did not change the effect of the statute. The history of the act shows that the purpose of the proviso was to enable a creditor to prosecute a garnishment proceeding to a final determination, as against a nonresident defendant, notwithstanding the fact that the notices required by statute to be given in the garnishment proceeding could not be served upon him, owing to his absence from the state. • That is still the purpose if the present provision may be construed in harmony therewith. As said in State v. Stroschein, 99 Minn. 248, 109 N. W. 235, the cardinal rule of construction is to arrive at the legislative intent. In Lockey v. Lockey, 112 Minn. 512, 128 N. W. 833, in considering an apparent change, apparently as radical as that now under consideration, made by the revised laws in the former law defining what shall constitute the homestead, it is said: “A careful consideration of the old and new statutes leads to the conclusion that the legislature did not intend to change the law upon this subject. And while the language of the new statute is somewhat different from the old, every indication points to a purpose to retain the settled policy. * * * What seems fairly conclusive upon the subject appears in the report of the statutory revision * * * commission where a purpose to retain the area theory is affirmatively stated. * * * This report, though not conclusive, was before the legislature when considering the adoption of the new law, and inasmuch as no change was made by that body in the language of the commission as
The garnishees contend that plaintiff is estopped from raising the questions sought to be presented by the supplemental complaint. Galbraith sold the property conveyed to him by the deed of assignment to one Green in the state of North Dakota. Plaintiff caused a portion of the property so sold to Green to be seized under a writ of attachment issued by the North Dakota court in the suit which resulted in the judgment upon which the present action is based. Green replevied the property so seized from the sheriff and obtained a judgment that he was the owner of it. In the litigation between Green and the sheriff, it was conceded that the deed of assignment was void upon its face, and Green’s title was upheld solely upon the ground that he was a Iona fide purchaser of the
Order reversed.