Schiele v. Dillard

Wood, J., (after stating the facts). The -appellants sought by amendment to their complaint to substitute new parties defendant. This could not be done. While the court may in its discretion allow additional parties plaintiff or defendant to be added or struck out, it can not make an entire change of parties plaintiff -or defendant. That would be tantamount to a new suit between entirely different parties. State v. Rottaken, 34 Ark. 144; 3 Estee’s Pleading, § 4487. Appellants’ suit therefore against the partnership of Dillard & Kilgore Company must date from the day the so-called amended complaint was filed and the summons issued, towit, August 9, 1907. 1 Ency. Plead. & Pr. 545, and cases cited. The North State Eire Insurance Company was never summoned as garnishee in this new suit, and no allegations and interrogatories were filed against it after the so-called amendment. Therefore the court did n-ot acquire jurisdiction of th-e North-State Eire Insurance Company as a garnishee in this new suit. The garnishee must be served with process. In this respect the garnishee is different from the defendant, who can give j tins diction to 'the court by entering his personal appearance, even though not served with process. The validity of garnishment proceedings rests entirely upon complying with judicial process and statutory provisions. Pennsylvania Rd. Co. v. Rogers, 52 W. Va. 430, 62 L. R. A. 178-186; Schlindler v. Smith, 18 Da. Ann. 476. The court had acquired no jurisdiction of Dillard, the individual, in the original suit brought by appellant against the Dillard & Kilgore Company, the corporation, and hence in that suit it did not acquire jurisdiction of the North State Eire Insurance Company, garnishee, who owed A. J. Dillard, the individual, and not Dillard & Kilgore Company, -the corporation. The appellees acquired jurisdiction of A. J. Dillard, the individual, and of the North State Fire Insurance Company before the appellants acquired such jurisdiction, and the judgment of the court therefore in- favor of appellees must take precedence. The fund was impounded under the -order of the circuit court directing the garnishee to pay same to the clerk of that court, and it was proper for the appellee, Standard Distilling Company, having- a lien prior -to that of appellant, to apply to the circuit court for its distributive share of the fund. There was no error in overruling appellant’s motion, and the judgment of the circuit court is therefore affirmed.