I dissent. By making its return as it did, i.e., that it had no property of the defendant in its possession, the bank waived any objection it had as garnishee to the sufficiency of the writ. The majority seems to overlook the fact that this writ is not being attacked by the judgment debtor but rather by the garnishee. That the garnishee could make such a waiver to any right to attack the sufficiency of the writ so far as it is concerned is settled.
In the cases cited by the majority, there is no waiver as here. In those cases the attack on the sufficiency of the writ is direct. In this case the attack is collateral and it should be noted that the sufficiency of the writ can only be attacked by a motion to quash or by some motion which would have the effect of a plea in abatement. (Shinn on Attachment and Garnishment, 977.)
In 28 C.J. 223, it is said: "A writ of garnishment is to be regarded as a process rather than as a pleading in determining the correct way in which to urge correction to it. Hence, defects cannot be reached by a demurrer but must be attacked by *Page 243 motion to quash or plea in abatement." (See, also, Martin v.Hostetter, 59 Okla. 246, 158 P. 1174.)
That defects in a writ of garnishment may be waived is so well settled that a long citation of authority should not be necessary. While it is true, as stated in Bristol v. Brent,36 Utah, 108, 103 P. 1076, 140 Am. St. Rep. 804, 21 Ann. Cas. 1125, that the garnishee by his answer to a defective writ cannot waive any rights which the defendant in the cause may have, he may waive the rights that he as garnishee has to question the sufficiency of the writ, and in the event his waiver might affect some right of the defendant in the cause, only the defendant himself by a proper action can question the waiver.
In 28 C.J. 224 the rule is stated thus: "Defects or objections in the writ as to matters required for the benefit of the garnishee may be waived by him as by his appearance, plea, or answer, without objection," (citing many cases). (See, also, 4 Am. Jur. 616; Bristol v. Brent, supra.)
It seems to me that the situation, so far as the effect of the answer of the defendant bank to the writ is concerned, is analogous to the situation in ordinary pleadings. The statute sets up requirements for service of the summons, complaint, etc., and these requirements must be followed. Yet it is undoubted that a general appearance by the defendant waives any defects in the summons, manner of service, etc., and that after a general appearance he cannot question their sufficiency. To question their sufficiency he must make a special appearance. By analogy it seems clear to me that a return to a writ stating that the garnishee has no property of the judgment debtor in its possession has the same effect as a general appearance in the ordinary cases. It recognizes the validity of the writ as the general appearance, by way of a general denial, recognizes the validity of the summons, etc., in an action.
In Bristol v. Brent, supra, the rule is stated: "The regularity of this service [of the writ], in so far as it is personal to the garnishee, may be waived by him, and he may appear before the court either in person or by answer if the law authorizes one *Page 244 to be made and filed, and thereby confer jurisdiction over his person."
The majority hold directly that the writ is completely void and that it may not be amended. With this I do not agree. First let it be noted that this court in Kipp v. Burton, 29 Mont. 96,74 P. 85, 101 Am. St. Rep. 544, 63 L.R.A. 325, has held directly that a writ of execution which lacks the seal of the court may be amended in that respect. In that case, as in this, the amendment was sought after the return of the writ. In theBurton Case the party objecting to the sufficiency of the writ was the judgment debtor and there was no element of waiver. I see no way of distinguishing this case from that one, and the result of the conclusion reached by the majority is to overrule the decision in that case. The requirement that the writ bear the seal is found in the same chapter of our Session Laws and it is couched in exactly the same terminology, i.e., that it must be sealed with the seal of the court.
I do not believe that at this late date without very cogent reasons, which do not here appear, the decision in the case ofKipp v. Burton, supra, which was made in 1903 and has stood for nearly forty years with many sessions of the legislature intervening when that body might have, if it chose, overruled it but did not do so, should now be set aside. That decision has the support of decisions from other jurisdictions, some rendered prior to that decision and some later.
In the case of Christy v. Springs, 11 Okla. 710,69 P. 864, in construing a statute similar to ours which provides that an execution shall be issued to the sheriff of the county where the property is held, as did our court, that when the execution was directed to the sheriff of the county in which the judgment was entered, but was delivered to and executed by the sheriff of the county in which the property was situate, the officer to whom it should have been directed, the direction was merely an irregularity, and that it was a defect subject to amendment in making void the writ on the sale and deed made thereunder. *Page 245
In the early New York case of Walden v. Davison, 15 Wend. 575, a similar fact situation arose with a like result, the court saying: "The mistake in the direction of the execution did not render it absolutely void, and the court would at any time have ordered an amendment, if that had been necessary for the protection of the officer." In that case the action was against the sheriff, but the principle is the same.
The case of Hall v. Lackmond, 50 Ark. 113, 6 S.W. 510, 7 Am. St. Rep. 84, was like the Burton Case in that the seal was omitted. The attack on the writ was direct. In its decision the court cited many cases and stated the rule to be that it had inherent power to amend its writs when defective. There are a great many cases involving writs issued to the sheriff when they should have been issued to a constable, or directed to a coroner when they should have been directed to a sheriff and vice versa. The rule as stated in Freeman on Execution, 3rd Ed., Chapter 65, has been universally adopted. The rule as there stated is "Where a writ is directed to an improper officer but executed by the proper officer, the error in the direction does not vitiate the writ and may be cured by amendments. Where such an error has been committed the court said `this is the judicial writ and the erroneous direction is a mere misprision of our own clerk. Judicial writs are more absolutely under the control of the court than original writs. Let the amendment be made.' (Campbell v.Stiles, 9 Mass. 217.)" Cases applying this rule are: Pecotte v. Oliver, 2 Idaho, 251, 10 P. 302; Simcoke v. Frederick,1 Ind. 54; Hearsey v. Bradbury, 9 Mass. 95; Morrell v.Cook, 31 Me. 120; and see, also, Rollins v. Rich, 27 Me. 557; 7 C.J.S., Attachment, sec. 186, p. 380; and 23 C.J. 373, where it is said: "Where plaintiff has a choice under certain circumstances * * * as to the county in which the writ may be sent, and is authorized to have it directed to a county other than that in which the judgment was rendered, an execution irregularly issued into a county other than that in which the judgment was rendered is not absolutely void; and the sheriff will be justified in executing it, and the title of the purchaser thereunder cannot be assailed *Page 246 collaterally." (Citing cases from Kentucky, Minnesota, Pennsylvania, and Texas.)
In the concurring opinion of MR. JUSTICE ANDERSON he says that what is said in Chapter 65 of Freeman on Executions, supra, is inapplicable as in the cases cited in support of that rule there was but one proper officer to execute the writ, while this is not the case here. With this I do not agree. There can be no doubt but that plaintiff by these proceedings sought to reach defendant's property in Chouteau county. But one officer was the proper one for such a levy, that officer being the sheriff of that county in whose hands the writ was placed and who served it. The sheriff of Cascade county could not be a proper person to serve this writ in Chouteau county. The cases cited by Freeman support the statement. The test applied by those cases is this: If in fact the writ is served by a proper officer, then misdirection of the writ to another officer is a mere misprision which may be corrected by amendment.
In Rollins v. Rich, 27 Me. 557, cited by Freeman, the court said: "The forms of writs are prescribed by the statute; and the form of an execution requires a direction to the officer, having power to serve it. But if executed by one having official power for the purpose, the omission of such direction may be supplied by amendment under leave of Court." To the same effect are Hearsey v. Bradbury, 9 Mass. 95; Wood v. Ross,11 Mass. 271; and Walden v. Davison, supra, cited by the author in support of his statement.
In the case of Bybee v. Ashby, (Ill.) 2 Gilman, 151, 43 Am. Dec. 47, the court discussed the Walden case, supra, and stated that it disagreed with that portion of the decision which we have heretofore quoted. Then the court said this: "Where it [the writ] is issued without the proper seal of Court attached" and where directed to a sheriff of a county other than where executed "such process will not justify the officer in executing it, and all his acts under it will be absolutely void, and he a trespasser."
It will be seen that the Illinois court placed the direction and the seal in the same class, and held omission of the one and a *Page 247 mistake in the other voided the writ. Kipp v. Burton, supra, was decided many years after the Illinois case, and as to the seal our court held directly contrary to the holding in that case. Several cases are cited in the note to the Illinois case in 43 Am. Dec. 47, among them Cox v. Nelson, (Ky.) 1 T.B. Mon. 94, 15 Am. Dec. 89. It holds contrary to the Illinois decision, saying that a writ issued to the wrong county is at most voidable. To the same effect is Sanders' Heirs v. Ruddle, (Ky.) 2 T.B. Mon. 139, 15 Am. Dec. 148; and Commonwealth v.O'Cull, (Ky.) 7 J.J. Marsh, 149, 23 Am. Dec. 393. The concurring opinion cites two New York cases, Corrigan v.Kahn, 120 Misc. 161, 198 N.Y. Supp. 785, and Huber v.Moran-Greenberg Corp., 120 Misc. 104, 198 N.Y. Supp. 434. A reading of these cases will show that they are not in point. They are proceedings based on peculiar New York statutes providing for certain supplementary proceedings in courts other than the one in which judgment was taken, and they are no authority in any way for the view of the majority in this case. This likewise is true of the case of Fletcher v. Wear, 81 Mo. 524. There the service was made by a person not authorized by law to do so and, of course, it was void. The court there said: "I do not think the justice was empowered to appoint any one to serve the extraordinary process of attachment by garnishment. From this, it follows that there was no service of the process at all." In this case it may be noted, too, that the action was a direct attack upon the writ.
In conclusion it is my opinion that this court should adhere to the decision in Kipp v. Burton, supra, and the majority rule as set out in the case of Christy v. Springs,11 Okla. 710, 69 P. 864, and other cases herein cited. It seems to me the majority opinion will work a very serious harm to all who in the future find themselves in the position of garnishees. The majority has placed on the garnishee the duty to strictly examine every writ, and if any error exists in that writ which the garnishee overlooks, and if he turns over any of the defendant's property in pursuance of it, then no matter how little merit there is in the judgment debtor's position, and no matter how *Page 248 slight the defect, if the writ does not exactly conform to the statute, the garnishee becomes absolutely liable to the judgment debtor. Every garnishee must then act at his own peril. It seems to me that garnishees will be better protected and justice better served if we adhere to the rule stated in the modern work, 23 C.J. 373, and 28 C.J. 224, as above quoted, than returning to the rule, even as to which most authorities were then contract, announced in Wade on Attachment, published in 1886 and found inBybee v. Ashby, supra, decided in 1845, and which our own court repudiated as to the seal on the writ, in the Kipp Case, supra.
A question not discussed by the majority, and in view of the conclusion they reach one that was unnecessary for them to consider, was raised upon the appeal by the respondent. The writ named the defendant Hildia Bernard Nottingham, the full name of the defendant. It is admitted that Hildia Bernard Nottingham and H.B. Nottingham are one and the same person. It is admitted that the bank had an account which stood in the name of H.B. Nottingham and he had sufficient money in it to satisfy the judgment in question. There can be no question but that the name in the writ was sufficient to put the bank on notice that the person named in the writ was its depositor.
I believe that the judgment should be reversed with directions to enter judgment for this plaintiff.