Parker v. . Scott

*120 Dick, J. The notes executed by Bledsoe, which are the subject of this controversy, were assigned, by a deed in trust, to Young, on the 1st of December 1866, and were also duly endorsed to him, by the payee, Scott, to secure certain debts mentioned in said trust. It is admitted that said endorsements were made to effect the purposes of the trust. This constituted a sufficient consideration to support the contract of endorsement, and vested the legal title of said notes in the trustee. The deed in trust was delivered to the Begis-ter for registration, at 10 o’clock, A. M. on the 20th day of December 1866, and was actually registered on the 28th day of January 1867, as appears from the certificate of the Begister. In contemplation of law, the deed in trust was duly registered from the time of its delivery to the Begister and from that time was good against creditors: McKimmon v. McLean 2 D. & B. 79, Mills v. Bright 4 id 173. It is insisted by the. plaintiff, that his attachment was properly served on the debtor, Bledsoe, before the registration of such trust, as a summons for him as garnishee was left at his residence by the Sheriff at 8 o’clock, A. M., on said 20th day of December. The summons was not actually received by Bledsoe until he returned home, in the evening of said day. The question presented for our determination, is, whether this constructive service of process was sufficient, or was personal service necessary to give priority to the claims of the plaintiff. In many instances, usually prescribed by statute, the leaving a written notice at the residence of a'person, is sufficient service to bind the party, &c.: Rev. Code ch. 31, sec. 121. But in most cases where process is used to c.all a person as a party into Court to determine a question of right in which such party is personally interested, the law requires actual service of such process on the defendants: 3 Chit. Genl. Pr. 144, Cooley Const. Lim. 403. The statute in relation to garnishments (Bev. Code ch. 7, sec. 7) evidently contemplated personal service, as no *121 provision is made for a constructive service of the summons, and this statute has always been strictly construed. The attachment in this case is substantially an action at law by the defendant against the garnishee, and, as in common law actions, personal service is required. The plaintiff in this case can have no right against the garnishee, which the defendants would not have had in a common law action to recover the debt. The service of the summons upon Bledsoe, was not effectual until he actually received it, and as that was after the registration of the trust, the rights of the trustee are not affected. The judgment in the Court below must be set aside, and the proceedings dismissed. Pee, Curiam. Judgment accordingly.