Godman v. Gordon

Smith, P. J.

—The plaintiff brought this action against defendant, Jack Victor, by attachment, before a justice of the peace. Glordon and W. L. Victor, executors of the estate of S. B. Victor, deceased, were summoned as garnishees. The cause was removed by appeal to the circuit court, where the plaintiff had judgment, and to reverse which the garnishees have appealed.

The garnishees filed no bill of exceptions, though the clerk has copied into the transcript a number of motions and the rulings of the court thereon; but these, of course, we can not notice. Our examination must be restricted to the record proper. If we find any error appearing on the face of it, we will take notice of it, but we can look no further.

The garnishees contend that neither the circuit court nor the justice had any jurisdiction of the subject-matter of the action, or of the garnishees. The specific grounds of the garnishees’ assault on the judgment are these:

I. That the affidavit filed before the justice for the attachment is a nullity and did not authorize the issue of the writ.

It is apparent that the title of the case is erroneously stated. C. B. Sebastian, the affiant, is first *690 stated in the affidavit to be the plaintiff, but further on it is stated that “plaintiff W. B. Godman, has a just demand against defendant, and that the amount which affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, is $223.50, now due, and that he has good reason to believe, and does believe, that the defendant is a nonresident of this state.” It does not appear on the face of the affidavit that Sebastian is either agent or attorney for the plaintiff. This, it seems, is a requirement of the statute in relation to attachments in courts of record. R. S. sec. 526; Claflin v. Hoover, 20 Mo. App. 314 ; Gilkerson v. Knight, 71 Mo. 403 . But no such requirement is to be found in that relating to attachments before justices of the peace. Art. 11, chap. 10, R. S.

In section 604 of the above cited article it is provided that the law governing attachments in courts of record shall apply in attachments before justices of the peace, so far as the same may not be inconsistent with the provisions which are specially applicable to the latter. Included in the latter is section 587, which specially provides the form of an affidavit for an attachment, .and there, it will be seen, there is no such requirement .as that contained in section 526, already referred to. So that, in attachments before a justice of the peace, the affidavit need not recite that the affiant is “agent or attorney for plaintiff.”

The affidavit, . while somewhat irregular in the particulars already stated, contained the statutable essentials, and was, in our opinion, sufficient to authorize the issue of the writ. Burnett v. McCluey, 92 Mo. 230 .

II. The garnishees object that the publication was not made in conformity to law.

This objection to the jurisdiction is not available to the garnishees. The objection of the garnishees to *691 the jurisdiction stands on the same footing as the objection pf any third, person questioning the validity •of the proceeding collaterally. If the question were before us in a direct proceeding by defendant in the attachment, we might be obliged to rule the publication defective, and reverse the judgment for that reason. But. jurisdiction in attachment is acquired by the levy of the writ regularly issued, and is not ousted by the fact that the subsequent publication was not regularly made. Simmons v. Railroad, 19 Mo. App. 542 ; Freeman v. Thompson, 53 Mo. 183 ; Kane v. McCown, 55 Mo. 181 ; Holland v. Adair, 55 Mo. 40 ; Johnson v. Gage, 57 Mo. 165 .

In the last of these cases it was stated that; “The omission to prove publication is only an- irregularity in the proceedings in a case in which the court already has jurisdiction, so far as the attached property is concerned, and that, although a judgment rendered in such case might be set aside for irregularity, in a direct proceeding for that purpose, yet the judgment would not be held absolutely void in a collateral proceeding.” It seems to us that the publication in this case was sufficient under the statute (Revised Statutes, sections 596, 597); but whether so or not, it is not according to the well settled rule of this state, as appears by the decisions just referred to, subject to attack by the garnishees.

III. The statute provides that no justice of the peace shall have jurisdiction to hear or try any action against an executor or administrator. R. S., sec. 6124.

A garnishment, owing to its auxiliary character, is not a suit. It is one of the modes pointed out by statute, by which the defendant’s credits may be sequestered and applied to the satisfaction of the plaintiff’s judgment. Tinsley v. Savage, 50 Mo. 141 ; Ritter v. Insurance Co., 28 Mo. App. 140 . An executor or *692 administrator is liable to be summoned as garnishee, after the making of an order of distribution, or for the payment of a legacy. R. S., section, 5220. There is, therefore, no force in the garnishees’ objection that the garnishment proceeding against them was without the jurisdiction of the justice, since they were, at the time of the service of the notice on them by-the constable, executors. It appears by the judgment appealed from, that the garnishees are the executors of the estate of S.B. Victor, and that prior to the service of the garnishment on them, there was an order of distribution made in the probate court of Boone county, and that the distributive share of the defendant, according to said order, was $916, and that the garnishees had said sum in their hands, at the time of the garnishment upon them.

The facts found by the court, we think are sufficient to authorize the judgment.

IV. The garnishees’ final contention is that the return of the constable on the summons of garnishment is wholly insufficient to bring the res into court, so .as to authorize a judgment against them. The return recites that the constable executed the writ by summoning the garnishees and declaring to each of them that “I attached in their hands any money or property or evidence of debt belonging to defendant,” etc. This was a compliance with the statute. R. S., section 543; Dunn v. Railroad, 45 Mo. App. 29 ; Fletcher v. Wear, 81 Mo. 524 ; Gates v. Tusten, 89 Mo. 13 ; Mangold v. Dooley, 89 Mo. 111 .

But it is further insisted tha“t,. if this be so, the return is an amended one and was not made until after the cause reached the circuit court, and that, therefore, there was no jurisdiction by the justice over the res, at the time of the rendition of his judgment. It is conceded that the original return of the constable was insufficient and defective, like that in Dunn v. Railroad, *693 supra. If the constable made the declaration to the garnishees, at the time of the service of the summons on them that is required by statute (section 513), then there was jurisdiction. If he did not show this fact by his original return, there is no reason why he could not later on amend his return, so as to show it. The return was only a method provided by statute for the establishment of the fact that the constable had taken a step, which the law required to confer jurisdiction of the res. If the amended return, then made, showed that the constable took the steps required to confer jurisdiction before the judgment against the garnishees was rendered, it was sufficient, though not made until after the cause was taken to the circuit court by appeal. Todd v. Railroad, 33 Mo. App. 110 ; Turner v. Railroad, 78 Mo. 578 . In other words, if the amendment was made according to the fact, it was as efficient to ■confer jurisdiction as the original would have been, had it, in all respects, been formal and sufficient.

No error appears upon the face of the record which would justify us in disturbing the judgment, which will, accordingly be affirmed.

All concur.