Fraley v. Hoban

*183Decided January 6, 1914.

On the Merits.

(137 Pac. 751.)

For appellant there was a brief and an oral argument by Mr. Samuel B. Huston. For defendant, John W.'Taggart, there was a brief and an oral argument by Mr. J. B. By an. For respondent there was a brief over the names of Mr. Cicero M. Idleman and Mr. Sidney J. Graham, with an oral argument by Mr. Idleman. “To W. N. Jones, the Above-named Garnishee, and to S. B. Huston, Your Attorney: “You, and each of you, are hereby notified that the plaintiff will apply to Judge C. IT. Gantenbein, on Monday, December 30, 1912, at 9:30 o’clock A. M., or as soon thereafter as it may be reached, for an order entering judgment against you in the sum recovered by the plaintiff against the defendants in the above-entitled suit. This notice is served upon you pursuant to an order of the Honorable C. IT. Gantenbein.” On December 30,1912, the court entered a judgment, reciting the appearance of the plaintiff and the garnishee by their attorneys, and ordering and adjudging that the plaintiff recover from J ones, as garnishee, the sum of $5,090, together with interest therein named; that being the amount of the original judgment against the principal defendants. Prom this judgment, the garnishee, Jones, has appealed. Reversed With Directions. Department 1. Mr. Justice Burnett

delivered the opinión of the eonrt.

2. It is contended by the garnishee that the judgment is invalid because no allegations and interrogatories were served upon him in any of the proceedings. It is recited in the statement of counsel for the garnishee that no interrogatories or allegations were served. The attorneys for the plaintiff state in their additional abstract that interrogatories were served. It becomes necessary, therefore, as a preliminary, to settle the dispute on this point. It is stated in Section 538, L. O. L., that: “Notices shall be in writing, and notices and other papers shall be served on the party or attorney in the manner prescribed in this chapter, where not otherwise provided by this code.” It is also laid down in the following section that: “The proof of service shall be the same as the proof of service of a summons, and shall be returned with the original notice, or other paper of which service is made, at the time and place therein prescribed for the hearing or other proceeding to be had thereon.” In Section 62, L. O. L., it is laid down that: “Proof of the service of the summons * * shall be as follows: 1. If the service or deposit in the postoffice be by the sheriff or his deputy, or by a constable or marshal, the certificate of such officer; or, 2. If by any other person, his affidavit thereof; * * or, 4. The written admission of the defendant.” Although both parties have filed a printed abstract of the record, and in the one filed by the plaintiff certain allegations and interrogatories are quoted, there is nothing in either of them to show that those papers were in fact served upon the garnishee. In the absence, therefore, of the proof required by the statute, it must be determined that they were not served.

3. It is contended by the plaintiff that, because the garnishee appeared by his attorney at the time the *186judgment was rendered against Mm, he thereby conferred jurisdiction upon the court to render the judgment. On this point, however, in Barr v. Warner, 38 Or. 109 (62 Pac. 899), Mr. Justice Moore, speaking for the court, said:

“A garnishee may waive many irregularities in the notice of garnishment, and by his certificate or answer in response thereto submit himself to the jurisdiction of the court, and thus become in privity with, and in effect a party to, the judgment which has been or may be rendered against his creditor [citing many authorities] ; but, while a garnishee may waive jurisdiction of his person, he cannot, by voluntarily appearing, waive the defendant’s rights, or substitute the latter’s creditor for his own, because that relates to the jurisdiction of the subject matter, which can be acquired only in the manner prescribed by law. ”

It has been ruled frequently that the service of allegations and interrogatories is essential to confer jurisdiction over the subject matter in cases where the answer of the garnishee denies liability, and the plaintiff in the writ would take further proceedings against him: Case v. Noyes, 16 Or. 329 (19 Pac. 104); Smith v. Conrad, 23 Or. 206, 211 (31 Pac. 398); Keene v. Smith, 44 Or. 525 (75 Pac. 1065). By virtue of the service of the writ of attachment upon a garnishee, the plaintiff acquires a right analogous to subrogation, giving him the privilege of bringing what may be termed an ancillary action against the garnishee to sequester the debt owing from the latter to the principal defendant. It is essential that allegations and interrogatories equivalent to a complaint on the cause of action existing in favor of the principal defendant, and for the time being conferred upon the plaintiff against the garnishee, be served upon the latter in the ancillary proceeding. Otherwise, the court does not obtain any jurisdiction over the subject matter. It would be like *187proceeding to judgment where a summons was served, but no complaint was filed.

4. A further reason why the judgment against the garnishee should be reversed is found in the fact that the plaintiff took judgment without in any way referring to or perpetuating therein the lien of the attachment. This constitutes a waiver of the attachment, putting an end to its efficiency. This question is exhaustively considered by Mr. Justice Ramsey, in Mertens v. Northern State Bank, 68 Or. 273 (135 Pac. 885), where the authorities are reviewed, and the rule is laid down in substance that, wherever the lien of an attachment is not perpetuated by the judgment, it is waived, and comes to naught.

For the reasons stated, the judgment against the garnishee has no foundation in law, and is reversed, with directions to dismiss the proceeding.

Reversed With Directions.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.