Padden v. Moore

Roti-irock, J. I. It appears from tbe record tbat tbe garnishment notice was'served by a bailiff, who was duly appointed and acting a's such at the term of tbe court which was in session when tbe execution issued. It. is claimed by appellants that tbe court had no jurisdiction of them because tbe bailiff bad no power to serve tbe writ. We do not find it necessary to determine this question, because we think tbe decree of tbe court below must be reversed on another ground, which we will proceed to consider. [705] 1. GARNISHEE: appearance : notice : jurisdiction. II. It is claimed that the court acquired no jurisdiction of the persons of the plaintiffs as garnishees because there was no ProPer service of notice upon them. Theexecution was issued during a term of court, and plaintiffs were required by the notice to appear on a day named at that term. The statute, defining the time of appearance and the rights of a garnishee after he has made an appearance in answer to the notice upon him, is singularly indefinite and inexplicit. "We believe the practice in some districts is to summon garnishees to appear on the'first day of the term, and at the convenience of counsel who have the matter in charge a commissioner- is appointed to take the answer of the garnishees, and the answer is taken at the convenience of all parties concerned except the garnishee. There should be some established practice upon the subject. In this case we are to inquire whether the garnishees were brought under the jurisdiction of the court by the service of any proper notice upon them. It is provided by section 2979 of the' Code, that the notice to the garnishee must require him “to appear on the first day of the next term of the court, wherein the main cause is pending.” This appears to be a peremptory provision of the law. A party cannot be required to appear as garnishee at any other time, any more than a party to an action can be required to appear in obedience to an original notice at any other time than that fixed by law. It is true this section of the Code is found in the chapter providing for garnishment in attachment proceedings, and while there is a main action pending. But by section 3051, which provides for garnishment on execution, it is required that the “ garnishee shall be served as in case of attachment,” and “ the proceedings shall be the same under garnishment as under attachment as near as the nature of the case will allow.” There can be no doubt under these provisions of the law that a garnishee when called upon to appear and answer in court, should be by notice required to do so on the first day of the next term of the court from which the writ issues. No [706] such notice having been served upon the plaintiffs, if they had failed to appear at the time fixed in the notice served upon them, the court could not have entered default against them, for the good and sufficient reason that there was no law requiring their appearance at the time named in the notice. It is scarcely necessary to say there was no voluntary appearance on the day fixed in the notice. None of the steps necessary to make an appearance were taken by plaintiffs, and there was no court in session to take their answers if they had attempted to appear. 2. — : — : jurisdiction : default and judgment: void. III. We are next to inquire whether the court at any subsequent, stage of the proceedings acquired jurisdiction of the garnishees. Of course, if there was no jurisdiction obtained by service of the notice, the subsequent appointment of a commissioner without notice, and the entering of a default and judgment without notice were all void. Did the showing why execution should not issue operate to give the court jurisdiction and render the judgment valid which before was void? We think under the circumstances of this case it did not. Whether a party upon this proceeding supplemental to the judgment may file a bill in equity to set aside the judgment as being void for want jurisdiction we need not determine. The facts in this case show that,the paper prepared by plaintiffs was a protest against • the jurisdiction of the court to render judgment against-'them, and the court had the records before it showing the want of jurisdiction, but the showing by the plaintiffs was not an appearance by them to the proceeding, because it did not constitute an appearance as defined by section 2626 of the Code. The paper of showing was not filed and did not become part of the records of the court. It was not filed because no memorandum thereof was made in the appearance docket. Code, § 200. It is true, the plaintiffs in their petition in this case and in argument claim that no appearance was made by their counsel when the cause was disposed of, because he was sick. They urge and insist, however, that the [707] court had no jurisdiction. We agree with them, but on somewhat different grounds than those which they urge. 3. — : indebtedness: burden of proof. ' IV- The judgment being void, the plaintiffs in this action seek to set it aside for that reason, and they aver that they were in no manner indebted to the execution defendant when they were served with the garnish: ment notice. Appellees insist that plaintiffs have hot shown by proof that they were not so indebted. We think as the judgment was void and the garnishees alleged that they were not indebted, the burthen was on the defendants to show that they were. A garnishee is not presumed to be indebted to the execution or attachment defendant. Reversed.