Home Savings Bank v. Rolando

189 A. 27, 57 R.I. 205, 1937 R.I. LEXIS 87

• Court: Supreme Court of Rhode Island
• Decided: January 20, 1937
• Status: Published

Opinions

Flynn, C. J.

This action in assumpsit was before this court previously on the plaintiff’s exception to the decision of the Superior Court discharging the garnishees. See Home Savings Bank v. Rolando, 165 A. 364. It is here now, after a second hearing in the Superior Court, on the exception of the law firm of Pettine, Godfrey and Cambio to the decision of that court charging them as garnishees, and upon certain exceptions of Frank D. McKendall, who was permitted to intervene after the opinion above was ren dered and before the second hearing in the Superior Court.

The facts of the case sufficiently appear in the opinion above referred to and it is not necessary to repeat them here. The chief question now presented is entirely different from that which was presented when this court last heard the matter on the plaintiff’s exceptions. At that time, the case was remitted to the Superior Court for a rehearing on the ground that “the trial justice either forgot or misconceived the testimony.”

In view of our ultimate finding, the present proceeding-will be treated hereafter as upon the exception of the garnishees, who now urge that the trial justice, who presided at the second hearing, erred in charging these garnishees, under the writ of mesne process, after he had held that Anthony V. Pettine, individually, could not be charged as garnishee under the original writ, and after all other garnishees named in the original writ had filed affidavits showing no funds. Their argument summarized amounts to this: Inasmuch as the attempted garnishment of the defendants’ property in the hands of garnishees named in the original writ proved abortive, there was no proper service of original process necessary under our statute to the institution of a valid action against nonresident defendants. Therefore, they argue, the Superior Court was without jurisdiction to issue the writ of mesne process, based on the original writ, and to charge them as garnishees named therein.

It appears that this action was commenced by an original writ of attachment dated July 19, 1928, by the plaintiff bank of Boston, Massachusetts, against Bartolomeo Rolando and Olga Rolando of Seekonk, Massachusetts, as defendants, and sought to garnishee funds in the possession of The Providence Institution for Savings, the Lincoln Trust Company and Anthony V. Pettine, as trustees of said defendants. No service of the writ other than a notice forwarded by mail, was made on either of the defendants, who plainly appear on said writ as non residents. No appearance by or for the defendants, or either of them, was entered in the case at any time. Each of the banks named as a trustee of the defendants, filed the customary form of garnishee’s affidavit that it had, at the time of service of the writ, no funds belonging to the defendants, without making any further explanation.

The affidavit of Anthony Y. Pettine, the remaining trustee named in the writ, was filed August 10, 1928, and set out, in considerable detail, certain professional relations with the defendants, which he had had, not however as an individal, but merely as one of the law firm of Pettine, Godfrey and Cambio. This affidavit further set out that, except as a member of said firm, he had no funds of the defendants in his hands or possession, directly or indirectly. It admitted possession by the law partnership of funds in the amount of $2,137.65 received from the defendants, and deposited in the law partnership account at its bank at the time the writ was served on Anthony V. Pettine, personally.

The return-day named in the original writ was August 10, 1928, and it was duly entered in the Superior Court on that day. The Lincoln Trust Company duly filed in court on August 9, 1928, its garnishee affidavit disclosing no funds of the defendants; Anthony V. Pettine filed his affidavit on August 10, 1928; and the Providence Institution for Savings filed its affidavit declaring no funds of the defendants, on September 17, 1928. The plaintiff, on September 12, 1928, sued out a writ of mesne process garnisheeing the funds of the defendants in the hands and possession of Anthony V. Pettine, Edward L. Godfrey and Frank C. Cambio, copartners doing business under the firm name of Pettine, Godfrey and Cambio. This writ, by its terms, was issued “in addition and as auxiliary to an original writ returnable to said Court on August 10th, 1928,” and was served on the partnership firm on September 13, 1928.

On the second hearing in the Superior Court, following the earlier opinion of this court, the presiding justice ruled that Anthony V. Pettine, individually, could not be charged as garnishee under the original writ, but that, by virtue of the writ of mesne process, the firm of Pettine, Godfrey and Cambio was properly chargeable as garnishee, and he so decided. The plaintiff took no exception to such refusal of the presiding justice to charge Anthony V. Pettine individually, nor to the disclosures of the other garnishees as filed. Apparently it was content with the decision of the court charging the partnership firm as garnishee under the writ of mesne process. However, the law firm duly excepted to the decision, charging it as garnishee, and, by its bill of exceptions, it questions the correctness of this decision on two main grounds, only one of which need be considered here.

The firm contends that, when the presiding justice found Anthony V. Pettine individually was not chargeable, as garnishee, and when it appeared that there was no garnishment of any funds in the hands of any of the other named garnishees, the Superior Court was without jurisdiction to proceed further with the matter; and therefore the issuing of a writ of mesne process, being based upon an original writ which never legally subjected the defendants’ or their property to the court’s jurisdiction to charge the garnishees named in the writ of mesne process.

This contention was made by the garnishees in the Superior Court and was rejected by the presiding justice. He expressed the opinion that, notwithstanding the failure of service of the original writ on the nonresident defendants, and their nonappearance personally, or by counsel, to defend the action, the writ of mesne process, if it attached property of the defendants, gave the court jurisdiction to proceed, on the theory, as he expressed it, that: “Possibly the proceeding then is one more in rem than in personam.”

We are unable to adopt the reasoning of the trial justice on this point. It seems to us that the question here is entirely one of jurisdiction. Either there was pending before the Superior Court on the return-day of the original writ, on August 10, 1928, a valid action against these defendants, or there was not. If there was such a valid action pending, the court had jurisdiction to issue a writ of mesne process; otherwise it had no such jurisdiction.

An action, as here, seeking to subject the residents of another State to the jurisdiction of the courts of this State, is not properly commenced, so as to give the court jurisdiction over the nonresident defendants, unless the original writ is served strictly in accordance with the statute. A writ of summons, if not served within the State, is not sufficient to begin such an action. General Laws, 1923, Chap. 350, requires a valid attachment or garnishment as a condition precedent to proper service of a writ against nonresidents. Where, as here, it appears conclusively in the record that the original writ by which the action was intended to be commenced, has failed to subject the persons or property of the defendants to the jurisdiction of the court, then it follows that no valid action exists.

General Laws, 1923, Chap. 349, Sec. 17, does not appear to authorize a writ of mesne process as an original writ in a proceeding in rem against nonresidents, as indicated by the trial justice. This chapter provides that the plaintiffs “in any action may . . . sue out of the court in which the action shall have been commenced, a writ of mesne process commanding the attachment of the real or personal estate of the defendant, including his personal estate in the hands or possession of any person ... as the trustee of the defendant.” Such language seems clearly to indicate that a writ of mesne process is not the original writ to commence an action, but is a writ dependent upon an action previously commenced by proper service of an original writ. The bar, generally, seems to have acquiesced in such an interpretation for many years and the language, which appears in the writ of mesne process in question, explicitly states that it is in addition and as auxiliary to the original writ. The plaintiff, in issuing it and in its attitude toward it in the Superior Court, did not treat it fully as an original writ which commenced the action, but rather as one dependent upon an action properly commenced by an original writ. Perhaps one difficulty which weighs against treating it as an original writ is the requirement of General Laws, 1923, Chap. 337, that the writ and declaration must be entered on the return-day of the writ in the Superior Court. No declaration was entered with the writ of mesne process on September 28th.

According to our view, the language of the chapter authorizing the writ of mesne process presupposes the existence of a valid action, not then reduced to judgment, pending in the court out of which the mesne process is issued. In the instant case, the writ of mesne process was not served until September 13, 1928, three days after the return-day of the original writ. On that date, the status of the case in the Superior Court was this: The original writ had not been served on the defendant personally or at any last or usual place of abode within this State; nor had any appearance been made by or for them in this case; there was no garnishment valid in law of any personal property of the defendants in the hands of any person or firm as trustee for them within this State and there was no attachment of any real or other property belonging to them. There was a total failure to fulfill the conditions necessary to give the court any jurisdiction over these nonresident defendants. No valid action, therefore, was commenced or pending to support the jurisdiction of the court to issue a writ of mesne process in the case. Because of such a failure to acquire any jurisdiction over the defendants, the effect, in law, is as if the original writ and declaration were never issued or entered in court.

The fact that the Providence Institution for Savings had not made disclosure at the time the writ of mesne process was served on the partnership, that it had no funds of the defendants, or that the court had not then decided that Anthony Y. Pettine, individually, could not be charged as garnishee, does not help the plaintiff. Four days later, the bank did file its affidavit, which was not excepted to, wherein it disclosed no funds of the defendants in the garnishee process at the time the original writ was served on it. The decision of the court, to which no exception was taken by the plaintiff, held that Anthony V. Pettine had no funds of the defendants at the time the writ was served on him. The controlling factor here is not when the court decided the question, but rather what it decided; here, it decided facts as of the date when the original writ was served, which deprived the court of any right to entertain jurisdiction of the case at all. Moreover, on the return-day of the writ of mesne process, which was September 28, 1928, it was then established, beyond question, from the record that the original writ and the action based thereon were nullities, at least from September 10, for the reason that it had failed in every respect to bring either the persons of the nonresident defendants before the court or to subject any of their property in the hands of residents of this State to the jurisdiction of the court. Unless the original writ validly served is not necessary to the proper institution of an action, we can not see, in the circumstances presented here, how it can be successfully argued that the court had jurisdiction to issue the writ of mesne process. We are of the opinion that an original writ properly served is indispensable to the commencement of an action, at least, when the writ is one of attachment or garnishment and where the jurisdiction of the court depends entirely on the existence of a valid attachment or garnishment in the first instance.

Attachment and garnishment are statutory remedies and are in derogation of the common law. Service of writs upon nonresidents in a manner to subject constitutionally those nonresidents to the jurisdiction of our State courts is likewise a statutory right. Under well-recognized principles of construction we are required to give a strict construction to such statutes. If this construction seems technical or works any hardship, as it may in this case, it is something over which the law court has no control.

It must be noted that the action is one at law based upon statutory rights and is not a case in equity. We are not dealing here with mere irregularity of service in an original writ, but one where its commands were properly executed by the sheriff and where there is a total failure of service. No cases have been cited to us by either party upon this novel point. In deciding it we are not assisted by cases from other jurisdictions where the practice of instituting suits in some manner different from our practice of instituting cases by an original writ of attachment may prevail. It must be decided upon jurisdictional questions according to the principles of law and not of equity. The plaintiff bank chose to come from Massachusetts, where the courts had jurisdiction of the plaintiff and defendants, and to employ a statute which may have been designed to protect residents of Rhode Island who desired to bring nonresidents before the courts of this State. This point, however, has not been argued.

For the reasons stated, we must hold that the Superior Court was without jurisdiction and therefore was in error in charging Pettine, Godfrey and Cambio as garnishees under the writ of mesne process of attachment. In view of this finding, the exceptions of Frank D. McKendall are, without prejudice, not passed upon.

The exception of the garnishees, Pettine, Godfrey and Cambio, is sustained, and the case is remitted to the Superior Court for further proceedings in accordance with this opinion.