Grand Tower Mining, Manufacturing & Transportation Co. v. Schirmer

Mr. Justice Walker delivered the opinion of the Court: This was a suit in equity, brought by appellants, in the Jackson circuit court, against appellees, to enjoin the collection of an execution for $21.21 and costs, in favor of appellees and against appellants, issued by a justice of the peace. The bill alleges that Toler & Heason recovered a judgment on the 30th of August, 1869, against one William Golliher; that an execution was issued and returned no property found ; that afterwards, on the 8th of September, 1869, the proper affidavit was filed before the justice of the peace, and a garnishee summons was issued against and served on appellants. On the 16th of September, 1869, appellants answered and were discharged by a judgment of the justice of the peace. On the 30th of the same month, another garnishee summons was issued and served on appellants, who answered on the 10th of the next October, and they were again discharged and judgment was rendered against the plaintiffs for costs. On the 20th of November, .1869, a third garnishee summons was issued and served on appellants, which was returned served on appellants, but the bill denies that it -was ever served, but that no further proceedings were had under that summons. On the 30th of December an execution was issued upon the original judgment against Golliher, and was returned'“no property found.” On the 14th of January, 1870, a fourth garnishee summons was issued and served on appellants. This is the return : “Served the within by reading to the within named company therein, January 15,- 1870.” On this return the justice of the peace rendered a judgment by default' for $32.15 and costs of suit. The bill denies all indebtedness by the company from the date of the issuing of the summons until the time when the judgment was rendered, or at any time since that time ; that the garnishee judgment included the costs of the previous proceedings in garnishment, and for which judgment had been rendered against the plaintiffs ;• that an execution was issued on this judgment against appellants and placed in the hands of a constable of the county, who had levied the same on four of appellants’ mules, and had advertised them for sale and was threatening to sell them to satisfy the execution. The bill prays an injunction to restrain the sale of the property and to perpetually enjoin the justice of the peace from ever issuing another execution on the judgment. A temporary injunction was issued. At the next term of the court defendants appeared and filed their demurrer to the bill, and entered a motion to dissolve the injunction. On a hearing, the court sustained the demurrer, dissolved the injunction and dismissed the bill. Suggestions were filed, and the court awarded $20 damages for wrongfully suing out the injunction. An appeal was prayed, granted and-perfected to this court. The act of February 8th, 1853, provides that, in all suits brought against an incorporated company, process shall be served upon the president thereof if he resides in the county; and if absent from the county or does not reside therein, the service shall be made by leaving a copy of the summons with any clerk, cashier, secretary, engineer, conductor, or any agent of such company found in the county, at least five daj7s before the trial, if the suit be brought before a justice of the peace, and at least ten days when suit is brought in the circuit court. In this case, there is no pretense that there was any such service. The constable says in his return that he served the summons by reading it to the company. He fails to state to whom he read it. He does not indicate whom he regarded as being the company. And even if he had, he says he served it by reading, when the statute requires the service to be made by leaving a copy with one of the persons specified. The officer making the service was bound to pursue the requirements of the statute. He is not invested with power to substitute another and different mode from that pointed out in the statute. This return fails to show that there was statutory service, and none other can be adopted. ■ The effort at service was unwarranted and is a nullity, precisely as though there had been no effort to make service. There being no service, the justice of the peace failed to acquire jurisdiction of the corporation, and hence the judgment and all subsequent steps taken by him were absolutely void, and the court below erred in sustaining the demurrer, dissolving the injunction and dismissing the bill. The facts disclosed in the ’bill, if true, entitled complainant to have the judgment and execution perpetually enjoined. The decree of the court below is reversed and the cause remanded. Decree reversed.