Duluth Brewing & Malting Co. v. Allen

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.'

On March 2, 1914, this action was commenced in the district court of Sheridan county to recover a balance alleged to be due for goods, wares and merchandise sold and delivered by the plaintiff to the defendant. On the same day a summons and writ of attachment were issued, and thereafter certain property belonging to the defendant was seized by virtue of the attachment. On March 28 an alias summons was issued. On May 8 the defendant appeared by general. demurrer, and on May 16 moved the court to discharge the attachment on the ground that it had been issued prior to the issuance of a valid summons. This motion was sustained and from the order discharging the attachment plaintiff appealed.

Attachment is classified by our Codes as a provisional [1] remedy. It is a summary proceeding ancillary to the action in which it is issued. As employed in sections 6656-6692, Be-vised Codes, the writ was unknown to the common law. It is of statutory origin and depends for its validity entirely upon a compliance with the statutory requirements. Those [2] requirements are (a) that an action upon a contract, express or implied, shall be pending, and (b) that a valid summons shall *92 be issued in the action prior to or at the time the writ of attachment is issued. (Sec. 6656, Rev. Codes.) In Sharman v. Huot, 20 Mont. 555 , 63 Am. St. Rep. 645 , 52 Pac. 558 , the foregoing section received consideration, and it was held that a writ of attachment issued prior to the issuance of a valid summons is [3] void. The summons in this action dated March 2, 1914, was entitled in the district court of Valley county, though the action was brought, and was then pending, in Sheridan county. Section 6515, Bevised Codes, provides: “The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court and must contain: The names of the parties to the action, the court in which it is brought, and the county in which the complaint is filed, and must be substantially as follows. * * * ” In Sharman v. Huot, above, the provisions of this section were declared to be mandatory, following Black v. Clendenin, 3 Mont. 44 ; Sawyer v. Robertson, 11 Mont. 416 , 28 Pac. 456 , and Choate v. Spencer, 13 Mont. 127 , 40 Am. St. Rep. 425 , 20 L. R. A. 424, 32 Pac. 651 . Whatever may be said of those earlier decisions, this much is true: Section 6515 was enacted to be observed. The courts have no authority to ignore its plain provisions altogether. To hold that there was substantial compliance with its requirements in this instance would do violence to every rule of construction and render the language of the statute meaningless. The summons directed the defendant to appear in the district court in and for Valley county, where no proceeding was pending against him. He was not summoned to appear in the district court of Sheridan county, where the action in question was pending. The summons does not conform substantially to the requirements of the statute, and for that reason is invalid. Smith v. Ellendale Mill Co., 4 Or. 70 , is directly in point upon the facts and supports our conclusion. To the same effect is Gill v. Hoblit, 23 Ill. 473 .

The so-called alias summons was not such in fact. (Rev. Codes, sec. 6516.) It was the first valid summons issued in the [4] action, but it could not give legal effect to the writ of attachment. It was issued long after the writ of attachment was *93 issued and served. In Sharman v. Huot above, the court said: “The subsequent issuance of the summons cannot give effect to that which was void from the beginning.

Neither did the general appearance of the defendant militate against his right to move to have the attachment discharged. Under the statute in force in the territory at the time of the decision in Vaughn v. Dawes, 7 Mont. 360 , 17 Pac. 114 , a motion to discharge an attachment had to be made before the time for answering expired. (See. 200, First Div., Comp. Stats. 1887.) Under our present Code (sec. 6681) the application may be made at any time either before or after the release of the attached property, or before any attachment shall have been actually [5] levied. The general appearance of the defendant operated as a waiver of any defects in the summons, so far as the action itself was concerned, but it did not have any effect whatever upon the ancillary proceeding. If the defendant appears in an action, it is immaterial whether a summons was issued or not, so far as the question of jurisdiction of the person is concerned. The judgment would be as valid if summons had not issued, as it would be if it had been regularly issued and served. But when a party seeks extraordinary relief by way of attachment, it is incumbent upon him to pursue the statute which affords him such relief and without which it cannot be had. The issuance of summons is not necessary to the recovery of judgment if the defendant appears generally, but it is essential to the right to have the defendant’s property attached, whether he appears in the action or does not.

The order of the district court is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.