Bank of Alpena v. Parsons

179 N.W. 32, 43 S.D. 363, 1920 S.D. LEXIS 113

• Court: South Dakota Supreme Court
• Decided: September 24, 1920
• Docket: File No. 4728
• Status: Published

Opinion

McCOY, P. J.

This action was commenced in Kingsbury county before a justice of the peace. Defendant was a resident of and was personally served with summons within Brown county. At the time of the issuance of the summons in the action, on March 5, 1918, a garnishee summons was issued and served upon the garnishee defendant, Chicago, Milwaukee & St. Paul Railway Company, within Kingsbury county. The summons in the principal action and the garnishee summons were both made returnable on March 14, 1918, and neither the principal defendant nor the garnishee defendant made any appearance in justice court, and a default judgment was rendered against the principal defendant and the garnishee defendant. Thereafter the garnishee defendant duly appealed from said judgment against it to the circuit court of Kingsbury county. In. the circuit court the garnishee defendant moved to set aside the judgment against the principal defendant and against the garnishee defendant, rendered in the justice court, on the ground that said justice had no jurisdiction over the person or subject 'of the action, in this, that the record discloses that the principal defendant was not a resident of Kingsbury county, and was not served with summons in said action in said Kingsbury county, and that by reason thereof the said judgment against the .principal defendant, as well as that against the garnishee defendant, was void. The motion was granted and from an order and judgment dismissing and setting aside said judgment t'he plaintiff apepals.

[1-2] We are of the opinion that the trial court did not commit error. Section 2130 and 2141, Code 1919, provide that a summons issued from a justice court cannot be served outside the county of the justice before whom' the action is brought, except where the action is 'brought upon a joint contract or obligation of two or more persons who reside in different counties in this state. This is not such an action. The provisions of these sections relate to the principal defendant, and in cases not wiithin the exception contained in section 2141 the 'defendant must be served within the county of the justice of the peace who issued the summons in ord'er to give the justice court jurisdiction of such defendant. There must be a valid judgment against the principal clefendant before a judgment can be rendered against a garnishee defendant, as .garnishee process is ancillary to the main action. Appellant contends that the proviso, “Provided, that at the time of the service of the summons in the principal action, unless such service is ■ made •without the county or by publication, the principal defendant shall also be served with garnishee summons,” contained section 2x59, authorizes the service of a summons in the principal action, in all cases, outside the county of the justice who issued such summons. Such an interpretation would be in conflict with and nullify the provisions of section. 2130 and 2141. We are of the view that the words “without the county,” found in this proviso of section 2159, relate to those cases within the exception coixtained in section 2141 where service outside the county of the justice is authorized in actions brought on a joint obligation of two or more persons residing in different counties; that these three sections of our statute must be construed together in the light of each other, so that the provisions thereof will harmonize. This construction is in accordance with the familiar general rule that statutes must be so construed as to give effect to and harmonize all the different portions thereof. It will be observed there is no provision, either in our garnishment or attachment statutes, under which, in an action in justice court, an “in rem” judgment may be obtained against the property of a person residing in this state, but out of the county of the justice, except in cases involving joint liability.

The judgment appealed from is affirmed.

SMITH and GATES', JJ., not sitting.