Bernath v. Kolosky

KANE, J. This is an appeal from the action of. the trial court in sustaining a motion to set aside a judgment rendered against the defendants in error herein as garnishees. It seems that after the plaintiffs in error recovered a judgment against the defendants in the, principal action and an execution was returned nnsatisfied, they filed an affidavit in garnishment wherein they alleged that the defendants in error herein “are indebted to said judgment debtors”. Upon this affidavit toeing filed a garnishment order was issued and served upon the garnishees, who thereafter, in due time, filed their separate answers denying that they were indebted to the judgment debtors. Thereafter, the plaintiffs in error herein served notice by registered mail on the garnishees that they elected to take issue on their answers. Two of the garnishees, Sat ah Kirschner and Edward Philip Kirschner, acknowledged receipt of the notices by signing the customary delivery receipt accompanying registered mail. Thereafter, without further pleadings or appearances by the garnishees, the ease was regularly set for trial, the plaintiffs introducing evidence supporting the allegation that the garnishees were indebted to the judgment debtors, the garnishees not appearing either in person or by attorney. Thereafter, judgment was rendered against the garnishees Sarah Kirschner and Edward Philip Kir-schner. At a subsequent term these garnishees filed the motion to set aside the judgment hereinbefore referred to upon the grounds, among others, (a) that no interrogatories were filed or served upon them in the garnishment proceedings as réquired by law; (b) that the service upon them of notice of exceptions to their .answers by registered mail was invalid. . Wherefore they say the judgment rendered' against them is coram non judice and void. In our judgment the trial court properly sustained the motion to set aside the judgment upon the second ground stated in the motion. Passing over the first point made, that the failure to file interrogatories was waived by the appearance of the garnishees, the next point made is that serving the notice of election to take issue on the 'answer of the garnishees by registered mail was a substantial compliance with the law, and therefore the judgment was not void. Section 4827, Rev. Laws 4910, which provides for notice, reads in part as follows: “The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated with reference to his liability to the defendant, unless the plaintiff, shall, within twenty days, serve upon the garnishee a notice in writing that h'e elects to take issue on his answer.” It is argued that, inasmuch as the manner of serving the notice is not prescribed by this section, service toy 'registered mail was sufficient where, as in the case at bar, it is conceded that the garnishees against whom judgment was rendered actually received the notice in due time. This contention probably would toe sound if it were not for section 5314, Rev. Laws 1910, which provides: “The service of a notice shall be made in the manner required by law for the service of a summons; and when served by an.officer, he shall be entitled to like fees.” This general section, following as it does section 5313, Rev. Laws 1910, which specifically provides for the service of notice of motions, must, if it is allowed any field for operation at all, be construed to apply to the service of notice where there is no other mode of service- specifically 'provided by statute. As there is no mode of service of the notice required by section 4827, Rev. Laws 1910, specifically prescribed by that section or by any other statute, it follows that it pmst toe served in the manner prescribed by'general section 5314, supra; that is, “in the manner required by law for the service of summons”. Section 47CL1, Rev. Laws 1910, provides that summons shall be served by delivering a copy thereof to the defendant personally or toy leaving one at usual place of residence with some member of his family over 15 years of age. It is obvious that serving the notice by *192 registered mail does not comply with the requirements of the foregoing statutes. For the reasons stated, the judgment of the court below is affirmed. HARRISON, C. J., and JOHNSON, MILLER, and KENNAMER, JJ., concur.