State ex rel. Bank of Herrick v. Circuit Court of Gregory County

WHITING, P. J.

This court issued an order to show cause requiring- respondent to show cause, if any there be, why a peremptory mandamus should not issue out of this court compelling respondent to issue an order for publication of summons in a certain cause pending before such court wherein relator is plaintiff and one Anson Wagar is defendant. ' Respondent has appeared in response to said order and demurs thereto, alleging, as grounds for demurrer, that the affidavit upon which relator’s application *577 was based does not state facts sufficient to entitle relator to any relief.

[1] Such demurrer confesses that respondent denied this application for an order for publication of summons for the sole reason “that the plaintiff has sought to acquire jurisdiction by a proceeding in garnishment whereby he seeks to subject certain moneys of the defendant in the Lucas State Bank to the payment of any judgment that he may obtain against the defendant; * * * that no levy upon the property of the defendant within the state has been made by attachment, and counsel for the plaintiff having stated in open court that no levy by attachment would be made 'for the reason that they deemed the proceeding in garnishment * * * sufficient to give jurisdiction upon which a valid judgment might be based.” The demurrer confesses that relator has a cause of action against Wagar; .that Wagar is a nonresident of this state; that he has property in the state; that the respondent had jurisdiction of the subject of the action, the debt sued for; that the defendant could not after due diligence be found in this state; that garnishee summons had been served on the garnishee and such garnishee -had made answer admitting it had moneys of defendant on deposit- — -all of such facts appearing clearly and fully from the affidavit. Respondent contends that attachment is the only proceeding through which the court could acquire jurisdiction to enter a judgment in such action.

It will thus be seen that the only question that is really presented to this court is whether the trial court should have granted ■the order for publication herein. The question of whether such trial court could eventually render a judgment in the action wherein publication of summons is sought is not properly before us 'at this time; it has no bearing upon' the question as to whether or not relator is entitled to the order of publication. This application for an order for .publication was made under section 112, C. C. P., which provides that, where the person upon whom service of summons is to be made cannot, -after due diligence, be found within the state, and that facts appear by affidavit to the satisfaction of the court or judge thereof, and it likewise appeal's that a cause of action exists against such defendant, the court or judge may grant an order directing -that service of summons be made by *578 publication when the defendant is not a resident of this state but has property therein and the court has jurisdiction of the subject of the action. The facts confessed by the demurrer cover every statutory essential to entitle the relator to such order for publication. If no garnishment proceeding had been instituted and service made therein upon the party with whom Wagar’s money was deposited, yet the mere fact that the defendant had property in this state, a fact conceded by the demurrer, taken in connection with the other conceded facts, entitled relator to the order asked for. That Wagar might make no personal appearance, and that the respondent court might never acquire any jurisdiction over the property of the defendant, and that, for want of any jurisdiction over either the person or property of Wagar, relator might never be entitled to recover a judgment was a matter not before the trial court and which it could not rightfully consider. It is the settled law of this state, in conformity with the decisions in the majority of the states, that it is not necessary for the court to acquire jurisdiction over the property prior to the granting of the order of publication. Bank v. Jacobson, 8 S. D. 292, 66 N. W. 453 ; Hartzell v. Vigen, 6 N. D. 117 , 69 N. W. 203 , 35 L. R. A. 451, 66 Am. St. Rep. 589 .

[2] While the above disposes of the sole question necessary for the 'disposition of this demurrer, yet it is apparent that if we merely overrule the demurrer and command the respondent to grant the order asked for, and thereafter the summons in the action of relator v. Wagar should be duly served by publication and Wagar should fail to appear, and plaintiff, without taking further steps to acquire any other different jurisdiction over Wagar’s property than he has 'or may acquire through garnishment proceedings, should apply for a judgment, respondent court might refuse the same upon the ground that it had jurisdiction neither over the person nor the property of Wagar; it appearing from respondent’s brief that the present judge of said court is of the opinion that garnishment proceedings cannot give such jurisdiction over the property (including choses in action) of a defendant as will support a judgment subjecting such property to the payment of relator’s claim. We therefore feel justified in determining the correctness of respondent’s view, a's by so doing we will undoubtedly avoid another appeal. Unless garnishment pro- *579 ceeclings give to the court some control or jurisdiction over the property or debt belonging to the defendant, such proceedings must certainly be a nullity.

[3] While a court of this state cannot reach beyond the boundaries thereof and acquire jurisdiction over the person of a party nonresident of this state or over property situate in another state, yet there can be no question bu't that it k within the sovereign power of a state to provide a method whereby, by proper process or proceeding, all property, both real and personal, situate within the state can be taken and applied to the payment of the -debts of its owners, wheresoever such owners may chance to reside. Property subject to actual seizure is so applied through attachment. Why should a man’s horse be attached and, through the attachment, applied to the payment of a debt and his choses in action beyond the reach of his creditors? Certainly there can be no reason lest it be the impossibility of devising a proper and efficient method for reaching them. It is to reach such choses in action, as well as tangible personal property in the possession of third parties, that the garnishment laws of this and other states have been passed; the proceedings therein are analogous to those in attachment; and the control or jurisdiction acquired over such debt or property is likewise of a similar nature to-, that acquired through the issuance and service of a writ of attachment.

In North Star Boot & Shoe Co., v. Ladd, 32 Minn. 381 , 20 N. W. 334 , it was said: “The garnishment is, in effect, an attachment of the ‘indebtedness’ of the garnishee to the defendant. Though, technically speaking, it may not give -a ‘specific lien’ upon such indebtedness,. its effect in conferring upon- the plaintiff a specified right (over and above that of a mere general creditor) to the indebtedness for the payment of his claim is substantially analogous to that acquired by an -attachment of tangible property.”

In Bragg v. Gaynor, 85 Wis. 468 , 55 N. W. 919 , 21 L. R. A. 161, it was said: “The procee-ss of garnishment operates as an attachment and fastens on such debts a lien by which they are brought under the dominion -and jurisdiction of the court.” See, also, Maxwell v. Bank, 101 Wis. 286 , 77 N. W. 149 , 70 Am. St. Rep. 926 ; Montana Nat. Bk. v. Merchants’ Nat. Bk., 19 Mont. 586 , 49 Pac. 149 , 61 Am. St. Rep. 532 .

*580 It is therefore clear both upon reason and authority that the court, through the garnishee proceedings, acquires jurisdiction over the property in the control of, or debt owing by, the garnishee defendant.

[4] Respondent has suggested that great hardship might come owing to the fact that the plaintiff is not required to put up a bond before issuing the garnishee process. Whether or not it was wise not to require a bond was a matter solely for the Legislature. Perhaps it was because no property is taken from the garnishee defendant and no judgment is enforced against him until after full adjudication of the rights of the parties to the main action that the Legislature thought it unnecessary to- require a bond.

The question under discussion was directly before the court of our sister state in Hartzell v. Vigen, supra, wherein the court held that a garnishee proceeding was a levy upon the property in the possession of the garnishee, and wherein the court said: “Whatever steps it may be necessary to taire in order to realize upon the property cannot affect the validity of the levy. The court has the power to make all necessary orders to that end, as was in fact done in this case. We think the court had full jurisdiction to render a valid' judgment in rem.”

And in Bragg v. Gaynor, supra, it was said: “It has been the law in this state from a very early period that debts due to a nonresident debtor from citizens of this state are subject to garnishee procees at the suit of his creditor in the courts of this state, and that such debtor can be brought into such courts by publication of summons. * * * By force of statute law, as well as public policy declared thereby, and in the decisions of the courts, ifche -situs or place where these debts are considered to be with reference to jurisdiction of our courts over them for the purpose of subjecting them to the satisfaction of debts due to a resident of this state from a nonresident in order to protect, do justice to, and satisfy creditors resident here is that of such resident debtor owing the -same. * * * They are to be regarded, for the purposes of such proceedings, as property abiding or being in the domicile of the party owing them and are as much subject to the jurisdiction and control of our courts as tangible property of a nonresident found within our'jurisdiction. It cannot be dis *581 puted that tangible property so situated could be seized and applied to the satisfaction of the debts of a nonresident; and it is equally clear, as it seems to us, that debts, things in action, as distinguished from things in possession, may be subjected to the equitable jurisdiction of our courts for the same purpose. * * * That local laws may thus fix the situs of debts at the domicile of the debtor for such purposes that under such laws they may be attached, and compulsory payment will protect the debtor everywhere against a suit for the recovery of the same debt by the creditor, is well established by many adjudicated cases, among which are Allen v. Watt, 79 Ill. 284 ; Bethel v. Judge, 57 Mich. 379 , 24 N. W. 112 ; Newland v. Judge, 85 Mich. 151 , 48 N. W. 544 ; Railway Co. v. Crane, 102 Ill. 249 [ 40 Am. Rep. 581 ] ; Moran v. Neville, 74 Pa. 52 ; Cochran v. Fitch, 1 Saudi. Ch. [N. Y.] 142; Williams v. Ingersoll, 89 N. Y. 523, 524 . And the correctness of this doctrine is distinctly recognized in Guillander v. Howell, 35 N. Y. 658, 659 , as an exception to .the general rule as to the situs of personalty at the domicile of the owner. Garnishee process under our statute is only the equivalent of an equitable attachment and creates a lien in like manner as by filing a bill and is in every essential element, so far as it extends, a creditors’ bill (Bank v. Wilson, 74 Was. 391, 43 N. W. 153 ), and a creditors’ bill is an equitable levy (In re Milburn, 59 Wis. 24 , 17 N. W. 965 .)”

The demurrer is overruled, and judgment, without costs, may entered upon the order overruling demurrer.