Gregor Grocer Co. v. Carlson

Smith, P. J. The Gregory Grocer Company brought a suit by attachment against E. O. Carlson and Neis. Printz, before a justice of the peace. On the writ of attachment, the Bovie-Heddens Grocer Company, the appellant, was summoned as garnishee. The return of the constable'indorsed on the writ was as follows: “Executed this writ in the township of Kaw this third day of February, 1894, by making diligent search for and failing to find the within named defendant E. O. Carlson and Neis. Printz, and by attaching the following described goods and chattels as the property of the within named defendants, and .by declaring to Bovie-Heddens Grocer Company on the third day of February, A. D. 1894, in Kaw township, county of Jackson, that I did summon it as garnishee to appear before the within named justice of the peace, at his office, on the return day of this writ, to answer such interrogatories as may be put to it by said justice, and by reading to it this writ of attachment. “J. B. Shoemakeb, Constable. “By J. Q. Yocum, D. Constable.” — 182 — The appellant objects that the said return on the writ was insufficient to confer jurisdiction over the res, or to authorize a judgment against him as garnishee. By reference to said, return, it will be seen that it does not show that the constable attached any property of the attachment defendants, by garnishment or otherwise. It shows no more than that the constable failed to find the defendants and that he summoned the appellant, as garnishee. This was no such return as showed jurisdiction over the res and authorized the court to pronounce judgment against the appellant. The statute in relation to the manner of serving writs of attachment provides that ‘ ‘where goods and chattels, money, or evidences of debt are to be attached, the officer shall take the same and keep them in his custody, if accessible, and if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands and summons such person as garnishee.” Subd. 4, sec. 572, R. S. And subdivision 5 of said section provides that “where the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt and interest, or damages and costs, and summon such debtor as garnishee.” It does not appear from the return of the constable on the writ that he took steps, or made the declaration to the garnishee required by either of the foregoing statutory subdivisions. The proceeding in its nature is a proceeding in rem, the object of which was to effect, as it were, a sequestration of the property and credits of the attachment defendants, to the end that they may be ultimately applied toward the satisfaction of the plaintiff’s claim by the final judgment of the court. The statutable declaration of sequestration — 183 — to the garnishee, under said subdivision 4, takes the place of manual seizure, on account of the inaccessibility of the property therein specified, and under said subdivision 5, on account of the intangibility of the credits there referred to. It constitutes a constructive seizure of the property and credits. The return of the constable fails to show that he made the declaration required by either of said statutory subdivisions, which was essential to bind in the hands of the appellant, either the property or credits of the attachment defendants. The return was wholly insufficient to bring the res into court, so as to authorize a judgment against the appellant garnishee. On the face of the return, the court acquired no jurisdiction of the res. These observations are abundantly supported by the following adjudications in this state: Todd v. Railroad, 33 Mo. App. 110; Keane v. Bartholow, 4 Mo. App. 507; Masterson v. Railroad, 29 Mo. App. 655; Dunn v. Railroad, 45 Mo. App. 30; Brecht v. Corby, 7 Mo. App. 300; Epstein v. Salorgne, 6 Mo. App. 352; Fletcher v. Wear, 81 Mo. 524; Newell v. Porter, 62 Mo. 309. But it is contended by the plaintiff that if the constable’s return, indorsed on the writ of attachment, is insufficient to confer jurisdiction, it is helped out by the return of the constable on the notice of garnishment, which is as follows: “Executed the within notice of garnishment in Kaw township in Jackson county, and state of Missouri, on the third day of February, 1894, by delivering a true copy of the same to F. M. Bovie, president of the Bovie-Heddens Grocer Company, a corporation, the within named garnishee, and further executed this writ by declaring to the within named garnishee, Bovie-Heddens Grocer Company, that I do attach in your hands all goods, chattels, moneys, rights, credits, — 184 — bonds, bills, notes, drafts, cheeks, or other choses in action of the defendants, E. O. Carlson and Neis. Printz, that is now in your charge or under your control, or that may come into your possession or under your control, the same not being accessible whereupon to levy this writ or make this judgment or costs or any part thereof. “J. B. Shoemakeb, Constable. “By J. Q. Yooum, D. C.” A notice given by the constable to the garnishee is not a judicial writ. The return of the constable on this notice, in the present case, can not be imported into that indorsed on the writ of attachment and thus utilized to supply the fatal defects of the latter. Todd v. Railroad, 33 Mo. App., ante. From the return of the constable made on the writ of attachment and that on his notice of garnishment, the constable might, by leave of court, amend his return on the writ. Todd v. Railroad, ante; Brecht v. Corby, ante; Transier v. Railroad, 54 Mo. 189; Turner v. Railroad, 78 Mo. 578. And if the amendment, when so made, should show that the constable took the proper steps required to confer jurisdiction, before the judgment against the appellant was rendered, it would be sufficient, though not made until after the case was removed to the circuit court, or, for that matter, to this court, by appeal. Godman v. Gordon, 61 Mo. App. 685; Todd v. Railroad, ante; Turner v. Railroad, ante. But the appellant further contends that even if the return of the constable on the writ can be amended by indorsing thereon the constable’s return on the garnishment notice, the return, when so amended, would still be insufficient to confer jurisdiction over the subject-matter of the garnishment, for the reason that the declaration of attachment, which we have hereinbefore set out, was under the fourth subdivision of section 543 — 185 — instead of the fifth subdivision of that section. The former of those subdivisions specifies goods and chattels, money and evidences of debt, by which is to be understood chattels of any kind, money, whether gold, silver, or bank or United States treasury notes, and bills, bonds, notes, and other evidences of debt owned by the defendant and in the possession of the garnishee as depository, or bailee. Where any such property is to be attached in the hands of the garnishee, but is inaccessible, then the declaration required by that subdivision must appear on the face of the officer’s return to have been made; but if the credits of the defendant are to be attached, then the declaration required by the fifth subdivision must appear by the return to have been made by the officer. The declaration required by the fourth subdivision will not have the effect to sequester credits of the attachment defendant. This can only be accomplished by making the declaration to the garnishee required by the fifth subdivision. Hackett v. Gihl, 63 Mo. App. 447. If the return made by the constable on the notice of garnishment had been indorsed on the writ of attachment, it would have been ineffectual to accomplish the sequestration of the attachment defendant’s credits in the hands of the garnishee. The record discloses the fact that Printz, one of the attachment defendants, long prior to the attachment, had, by a certain instrument in writing, conveyed to the garnishee a certain stock of merchandise, and that in said instrument it was provided that out of the proceeds of the sale of said stock of merchandise, the garnishee should pay certain specified obligations, etc., and that the surplus should be paid to the said attachment defendant. If there was any such surplus in the hands of the garnishee at the time of the service of the notice of garnishment, he was bound by the stipulation in said instrument to pay over the same to the — 186 — attachment defendant. This established the relation of debtor and creditor between the attachment defendant and the garnishee. The garnishee was the debtor of the attachment defendant. He was not a depository or bailee. This is too plain for argument. The declaration of attachment could not, therefore, have the effect to sequester this debt due by the garnishee to the attachment defendant, unless it had been made as required by the fifth subdivision of section 572, instead of the fourth. It inevitably follows that in any view that may be taken of the return of the constable on the writ, or on the notice of the garnishment, or of both, if taken together as the return on the writ, that the same was insufficient to confer upon the justice of the peace any rightful jurisdiction to make any order for the payment, which could bind the credits of the attachment defendant in the hands of the garnishee. And as to the amendment of the return, it may be remarked that the rule is that applications therefor in cases like the present are granted with great caution, and should be denied when the officer trusts merely to memory, and after lapse of months or years, asks to change the whole effect of his proceedings by adding to his return a statement which, if untrue, can not be disproved, and as to a fact which is not likely to have impressed his memory. Brecht v. Corby, 7 Mo. App. 300. Applying this rule to the return in the case in hand, it is obvious that no amendment of the return ought to be authorized by us. There is nothing in the record tending to show that the constable made the declaration of attachment required by the fifth subdivision of said section 543. It seems to us that it would not be the exercise of a sound discretion on our part to permit him, at so late a date, even if he were offering to do so, from mere memory to change his return so as to show that he made the declarations required by the — 187 — last named subdivision, instead of that shown by his return. There are other questions called to our attention in the briefs of counsel, but in view of the ruling just made, it becomes unnecessary to notice them. The judgment will be reversed. All concur.