McDonald v. Vinette

LyoN, J. The statute under which the garnishee summons was issued (R. S., sec. 3100) is imperative that such summons shall be made returnable on the return day of the execution. The execution was in the form prescribed in secs. 3682 and 3683. It commanded the officer to collect the amount specified in it and return the same to said judge “ within thirty days,” etc. The process was issued and put in the hands of the constable, May 13th. Excluding that day from the computation, and the return, to be within thirty days, must have been made on June 12th, which is the thirtieth and last day allowed. The language of the statute gives no support to the position, very ingeniously maintained by the learned counsel for the plaintiff, that the officer has the full thirty days in which, to collect, and may make his return on the thirty-first day. The mandate to him is both to collect and make return within thirty days. The return day of the execution was, therefore, June 12th, 1882, and the garnishee summons should have been made returnable on that day. The authority to institute and prosecute garnishee proceedings is entirely statutory, and unless the requirements of the statutes are complied with the proceedings cannot be sustained. The statute gives no authority whatever to issue a summons returnable on any day other than the return day of the execution. The garnishee defendant cannot lawfully be required by the summons to appear and answer touching his liability on any other day. A departure from the statute requirement of a single day is as fatal to the proceeding as one of a month or three months. The principle is the same in either case. [621] The municipal judge could only take jurisdiction of the garnishee defendant upon a summons issued and made returnable as the statute requires, and duly served. No such summons was returned to him by the constable, and (the garnishee not appearing) he lacked the first essential element of- jurisdiction of the person (if not of the subject matter), to wit, a valid process. Hence, the judgment of the municipal court rendered against the garnishee by default is unauthorized and void, and the circuit court properly reversed it on' certiorari. By the Court.— The judgment of the circuit court is affirmed.