OPINIÓN OF THE COURT BY
GALBRAITH, J.
The single, exception presented by the plaintiff was to the ruling of the Circuit Judge sustaining the motion of the defendant to set aside the service attempted to> be made on the gar-. nishee.
The plaintiff commenced an action in assumpsit in the Circuit Court against the defendant, F. Iwata, doing business as Kibi Shoten, and the Phoenix Insurance Company, of Brooklyn, New York, as garnishee. It appears that summons was regularly issued and served on the defendant and an attempt was made to [628]*628serve the local agent of the garnishee. The return of the sheriff as to this service is as follows: “Served the within summons on The Phoenix Insurnce Company of Brooklyn, New York, therein named as garnishee, through C. J. Hutchins, its agent, by leaving with him a true'and attested copy thereof, at Honolulu, Island of Oahu, Territory of Hawaii, this 14th day of October, A. D. 1902, at 3:25 o’clock p. m. ' A. M. Brown, High Sheriff.”
The garnishee appeared specially and presented a motion to set aside the service attempted to be made upon it on the ground that the certified copy of the summons left with its agent did not bear the 'impress of the seal of the court or the signature of the clerk. This motion was supported by the affidavit of C. I. Hutchins averring that he was the agent of the said Phoenix Insurance Company and the only person in this Territory authorized to receive service for it and that A. M. Brown, High Sheriff, had delivered to affiant “as and for a certified copy of said pretended original garnishment summons a certain paper, which is hereto attached and marked Exhibit A’ and that no other or further service was made upon said garnishee in said cause.” “Exhibit A,” attached to the affidavit bore neither an impress of the seal of the court nor the clerk’s signature.
Hnder the law in this Territory a summons from a court of record, such as the Circuit Court-, must,be issued by the clerk, “under the seal of the court,” etc. Section 1217, Civil Laws, Section 1102, C. L., relative to the service of summons as amended by Act 5, Laws of 1898, reads: “ Every summons issued under the seal of a court of record shall be served by the high sheriff, or his deputy,' or a sheriff or deputy sheriff, upon the defendant, by the delivery to him of á certified copy thereof, ***** or in case the defendant cannot be found, by leaving such certified copy with some agent or person transacting the business of the defendant, or at the defendant’s last place of residence.”
The provision relating to garnishment is in part as follows: “Whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they cannot be found to be attached or levied upon, or when debts are [629]*629due from auy person to a debtor, any creditor may bring his action against such debtor, and in his petition for process may request the court to insert therein a direction to the officer serving the same, to leave a true, and attested copy thereof with such attorney, agent, etc. * * * and-to summons such attorney, agent, etc. * * * to appear personally upon the day or term mentioned and appointed in said process for hearing the said cause, and then and there on oath to disclose whether he has, or at tire time said copy was served, had any of the goods and effects of the defendant in his hands,” etc. * * * Section 1710, Civil Laws.
The summons left with the garnishee’s agent was endorsed under the printed words, “Garnishee Summons,” “Issued at 8:10 o’clock p. m., October 15th, 1902. J. A. Thompson, Clerk,” and across its face was the following certificate, “I hereby certify the within summons and annexed complaint to be true- copies of the originals on file in said court, A. M. Brown, High Sheriff.”
It is contended for the plaintiff (1) that the service of summons on the garnishee was sufficient; (2) that even, if it were not sufficient, it was not void but voidable merely and that leave to amend should have been allowed.
In support of the first point it is argued that the object and purpose of a summons is to inform the person to whom it is delivered of the commencement of an action, by whom, its nature and the time and place he is required to. appear and answer or plead and that the signature of the clerk under the endorsement on the summons shows by whom the same was issued and that this summons left with the garnishee fulfilled all of these requirements and was good and sufficient. This argument is not sound for the sufficient reason that the copy of the summons served on thé garnishee did not have two things that the scatute says it should have had, i. e., thei impress of the seal of the court and the signature of the clerk.
The only further question is, were those defects of form merely rendering the summons voidable and subject to amendment on request or were they of substance rendering the; summons absolutely void and the service of no force and effect.
[630]*630The claim of right to amend the summons is not based -upon our statutes of amendments but upon the broad proposition of the general and inherent power of a court over its process. Nor is it contended that, if the -omissions are of the substance they are subject to amendnient.
The case of Miller v. Ziegler, 44 W. Va. 484; (also 67 Am. St. Repts. 777) is cited as a controlling authority in favor of plaintiff’s contention. An examination of that case discloses that it was a suit in equity wherein an attachment had issued. A moton to quash the writ was made on the ground that the writ had not been signed by the clerk when it was delivered to •the sheriff for execution. It appears that the writ had been signed when the motion was made. The court discusses the case on the supposition that the writ had not been signed by the clerk and holds that this was an inadventure or clerical error that did not render the writ void but voidable and that the court below should have permitted an amendnient under its general and inherent power to control its process. If there was any statute in West Virginia defining the requisite of process no reference is made to it nor is ther an intmation that the suit being in equity the court would be more liberal in allowing amendments than a court of law should be. That case is easily distinguishable from the' one at bar. That was an attachment suit, this is a garnishment proceeding and a third party is sought to-be brought into court by the process — that was a suit in equity and this is an action-a,t law wherein the plaintiff is attempting to’ follow a statutory proceeding without complying with the terms of the statute. In any event the reasoning of that decision does not appeal to me with such force that I am willing to follow it as a controlling authority.
In the State of Iowa the statute (Sec. 3804, McClain’s Code) provides that “actions in a court of record shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorneys” and this notice seems to take the place of summons in this jurisdiction. The Supreme Court there held, in a case where the service was made by delivery of a copy of the [631]*631notice without tlie signature of the plantiff or of his attorney, that the court acquired no jurisdiction of the defendant.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINIÓN OF THE COURT BY
GALBRAITH, J.
The single, exception presented by the plaintiff was to the ruling of the Circuit Judge sustaining the motion of the defendant to set aside the service attempted to> be made on the gar-. nishee.
The plaintiff commenced an action in assumpsit in the Circuit Court against the defendant, F. Iwata, doing business as Kibi Shoten, and the Phoenix Insurance Company, of Brooklyn, New York, as garnishee. It appears that summons was regularly issued and served on the defendant and an attempt was made to [628]*628serve the local agent of the garnishee. The return of the sheriff as to this service is as follows: “Served the within summons on The Phoenix Insurnce Company of Brooklyn, New York, therein named as garnishee, through C. J. Hutchins, its agent, by leaving with him a true'and attested copy thereof, at Honolulu, Island of Oahu, Territory of Hawaii, this 14th day of October, A. D. 1902, at 3:25 o’clock p. m. ' A. M. Brown, High Sheriff.”
The garnishee appeared specially and presented a motion to set aside the service attempted to be made upon it on the ground that the certified copy of the summons left with its agent did not bear the 'impress of the seal of the court or the signature of the clerk. This motion was supported by the affidavit of C. I. Hutchins averring that he was the agent of the said Phoenix Insurance Company and the only person in this Territory authorized to receive service for it and that A. M. Brown, High Sheriff, had delivered to affiant “as and for a certified copy of said pretended original garnishment summons a certain paper, which is hereto attached and marked Exhibit A’ and that no other or further service was made upon said garnishee in said cause.” “Exhibit A,” attached to the affidavit bore neither an impress of the seal of the court nor the clerk’s signature.
Hnder the law in this Territory a summons from a court of record, such as the Circuit Court-, must,be issued by the clerk, “under the seal of the court,” etc. Section 1217, Civil Laws, Section 1102, C. L., relative to the service of summons as amended by Act 5, Laws of 1898, reads: “ Every summons issued under the seal of a court of record shall be served by the high sheriff, or his deputy,' or a sheriff or deputy sheriff, upon the defendant, by the delivery to him of á certified copy thereof, ***** or in case the defendant cannot be found, by leaving such certified copy with some agent or person transacting the business of the defendant, or at the defendant’s last place of residence.”
The provision relating to garnishment is in part as follows: “Whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they cannot be found to be attached or levied upon, or when debts are [629]*629due from auy person to a debtor, any creditor may bring his action against such debtor, and in his petition for process may request the court to insert therein a direction to the officer serving the same, to leave a true, and attested copy thereof with such attorney, agent, etc. * * * and-to summons such attorney, agent, etc. * * * to appear personally upon the day or term mentioned and appointed in said process for hearing the said cause, and then and there on oath to disclose whether he has, or at tire time said copy was served, had any of the goods and effects of the defendant in his hands,” etc. * * * Section 1710, Civil Laws.
The summons left with the garnishee’s agent was endorsed under the printed words, “Garnishee Summons,” “Issued at 8:10 o’clock p. m., October 15th, 1902. J. A. Thompson, Clerk,” and across its face was the following certificate, “I hereby certify the within summons and annexed complaint to be true- copies of the originals on file in said court, A. M. Brown, High Sheriff.”
It is contended for the plaintiff (1) that the service of summons on the garnishee was sufficient; (2) that even, if it were not sufficient, it was not void but voidable merely and that leave to amend should have been allowed.
In support of the first point it is argued that the object and purpose of a summons is to inform the person to whom it is delivered of the commencement of an action, by whom, its nature and the time and place he is required to. appear and answer or plead and that the signature of the clerk under the endorsement on the summons shows by whom the same was issued and that this summons left with the garnishee fulfilled all of these requirements and was good and sufficient. This argument is not sound for the sufficient reason that the copy of the summons served on thé garnishee did not have two things that the scatute says it should have had, i. e., thei impress of the seal of the court and the signature of the clerk.
The only further question is, were those defects of form merely rendering the summons voidable and subject to amendment on request or were they of substance rendering the; summons absolutely void and the service of no force and effect.
[630]*630The claim of right to amend the summons is not based -upon our statutes of amendments but upon the broad proposition of the general and inherent power of a court over its process. Nor is it contended that, if the -omissions are of the substance they are subject to amendnient.
The case of Miller v. Ziegler, 44 W. Va. 484; (also 67 Am. St. Repts. 777) is cited as a controlling authority in favor of plaintiff’s contention. An examination of that case discloses that it was a suit in equity wherein an attachment had issued. A moton to quash the writ was made on the ground that the writ had not been signed by the clerk when it was delivered to •the sheriff for execution. It appears that the writ had been signed when the motion was made. The court discusses the case on the supposition that the writ had not been signed by the clerk and holds that this was an inadventure or clerical error that did not render the writ void but voidable and that the court below should have permitted an amendnient under its general and inherent power to control its process. If there was any statute in West Virginia defining the requisite of process no reference is made to it nor is ther an intmation that the suit being in equity the court would be more liberal in allowing amendments than a court of law should be. That case is easily distinguishable from the' one at bar. That was an attachment suit, this is a garnishment proceeding and a third party is sought to-be brought into court by the process — that was a suit in equity and this is an action-a,t law wherein the plaintiff is attempting to’ follow a statutory proceeding without complying with the terms of the statute. In any event the reasoning of that decision does not appeal to me with such force that I am willing to follow it as a controlling authority.
In the State of Iowa the statute (Sec. 3804, McClain’s Code) provides that “actions in a court of record shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorneys” and this notice seems to take the place of summons in this jurisdiction. The Supreme Court there held, in a case where the service was made by delivery of a copy of the [631]*631notice without tlie signature of the plantiff or of his attorney, that the court acquired no jurisdiction of the defendant. The court says in part: “It seems clear to us that, unless the copies show that the original was authenticated by the signature of the plaintiff or his attorneys the defendants were not bound to recognize it as a legal notice. They knew the notice only as shown by the copy, and surely, had the original been as these copies represented it to be, without signature, the court would have refused a default and judgment. Because of this omission it seems to us that it is clearly a case of no service.” Hoitt v. Skinner, 99 Iowa, 360, 365, 366.
In applying the same rule the Supreme Court of Texas said: “A defendant may know that a suit, has been brought against him, yet he is not bound to take action until he has been duly served with a process. He may justly conclude that the court will see that he has been duly cited before acting and hence is not presumed to know of a judgment that has been renderd ag'ainst him without jurisdiction. A proceeding under a writ of garnishment is no exception to the ride. On the contrary the garnishee cannot accept service or voluntarily answer so as to affect the rights of the defendant in the original suit or judgment or that of his creditors. The writ of garnishment takes effect so as to fix a prior claim upon the fund which is sought to be reached only by tlie service of the writ in the manner provided by law. Until this is done the garnishee can not be in any manner affected by the suit.” Harrell v. The Mexico Cattle Co., 13 Tex. 612, 616.
If the attempt to serve the garnishee was not simply defective but was no service at all then it follows as a matter of course that there could be no amendment for in the latter event to allow an amendment would be to permit the substitution of service where none had been made. “This power of amendment,” said Judge Choate, in Brown v. Pond, 5 Bed. Hep. “can only be exercised in cases where the court has acquired jurisdiction over the defendant, or he has submitted himself to the jurisdiction.” In other words it is power to amend a defect in process. There must first be a process to be amended. United States v. Turner, [632]*63250 Fed. 734, 735. “The summons must be signed by the clerk. His signature is a matter of substance. It is a fundamental part of the summons. Without it there is no summons.” Sherman v. Huot, 52 Pac. 558, 559. See also Russell v. Craig, 10 Colo. Appl. 428; Dwight v. Merritt, 4 Fed. 614; U. S. v. Rose, 14 Fed. 61.
W. Austin WMting and O. F. Clemons for plaintiff.
Humphreys, Thompson & Watson for garnishee.
The only way the court could have acquired jurisdiction over the garnishee and the property in his hands, if any, was by service of process in the manner prescribed by our statute. This was not done. The attempted service was defective in substance and was no service and the court had no power to permit an amendment of the defect.
The exception is overruled..