State, ex rel. Austrian, Wise & Co., v. Duncan.

until two days after the notices of garnishment had been served in the other cases, and the question involved is as to the validity of the proceedings in those cases. The facts as above stated are practically undisputed, and upon these facts the referee found that the Norfolk National Bank did not appear or answer as garnishee in any of the actions, but that John R. Hays did voluntarily appear in the five first commenced, no notice of garnishment having been served upon him. The contention centers upon this finding and upon the referee's conclusion that the county court obtained no jurisdiction by virtue of the garnishment proceedings in the cases first begun, the affidavits being held insufficient, and the garnishee having appeared voluntarily.

A question was raised as to the sufficiency of the affidavits in the cases begun December 1. The referee held that they were insufficient. It is said, first, that the affidavits are insufficient in form to authorize any garnishment proceedings because they do not show that the Norfolk National Bank is within the county where the actions were brought. Whether the omission of this averment renders the garnishment proceedings void, or whether it is a mere irregularity which may be waived by the garnishee's appearing and answering, it is not necessary to here decide.

It is also urged that the garnishee in the actions of December 1 was the Norfolk National Bank, while the answer was made by Hays in his own behalf, and he was a mere volunteer. This question is also eliminated from the case by the conclusion reached upon the next question, which, we think, goes to the foundation of the whole proceedings.

A recurrence to the statement of facts will show that there is nothing in the records of the cases of December 1 showing that any affidavits for garnishment were filed in the county court until May 11, 1889, long after relators' rights accrued, and after service upon the garnishee. On behalf of respondent it is argued that our statute only requires that such an affidavit should be made and not that

State, ex rel. Austrian, Wise & Co., v. Duncan,

it be filed in the court. The question is a new one in this state, but the language of the Wisconsin statute is the same as our own, and the supreme court of Wisconsin, in the case of Wells v. American Express Co., 55 Wis., 23, has, we think, determined the question in consonance with law, and upon general legal principles which cannot be questioned. It is there said: "The entries in the docket of a justice of the peace showing appearance of the defendant would be sufficient to warrant the judgment in ordinary common law causes. But the proceeding of garnishment is special and statutory and in derogation of the common law. It is a proceeding by which the debtor is compelled to pay another than his creditor, and the right of the creditor is transferred to another against his will, and this can only be done by force of the statute strictly pursued. It is in the nature of a proceeding in rem by which the plaintiff is sought to be invested with the right to appropriate to the satisfaction of his claim against the defendant a debt due from the garnishee to him. This being the nature of the proceeding, the principle is elementary that jurisdiction of the court therein must affirmatively appear.

In most, and perhaps all, of the cases of garnishment sought to be introduced in evidence in defense of this action there is an entry by the justice that an affidavit was made and filed. What the affidavit contained does not appear. The affidavit, being a prerequisite of jurisdiction, must not only appear upon the records, but be strictly sufficient; and not appearing, no jurisdiction whatever is shown in the justice." And, as said in Steen v. Norton, 45 Wis., 412, "In order to entitle a plaintiff to have recourse to the process of garnishment, in order to confer on the justice jurisdiction to entertain it, he must first make the affidavit required by the statute. All proceedings founded on a materially defective affidavit are coram non judice, and no appearance, no submission of the garnishee, can operate to waive the defect of jurisdiction."

* * *

State, ex rel. Austrian, Wise & Co., v. Duncan.

It will be observed that the court thought it necessary not only that a sufficient affidavit should affirmatively appear, but that it must appear from the records of the court. In order for the affidavits to appear from the record they must be filed, and the question then recurs, when is it necessary that the filing should take place? We answer that it should be before the notice is served. Respondent contends that this is inconvenient, as in some cases causing delay which might be hazardous, and he supports that contention by the language of the statute requiring only the making of an affidavit. The argument ab inconvenienti is clearly unsound. It might as well be applied to writs of attachment, executions, or other process which issue only from courts in pursuance of proceedings already had therein; and such force as the argument might have is more than met by the consideration that it would be on many accounts dangerous and unjust to permit an administrative officer to act in such extraordinary cases upon the authority of documents placed in his possession and not deposited in a public office. So far as the question turns upon the language of the statute, it may be observed that sections 200 and 926 of the Code, relating to undertakings for attachments, merely require the undertaking to be executed in the office of the clerk or the justice without any specific direction that they should be filed. Section 219 provides for the discharge of an attachment upon the execution of a bond to perform the judgment. Section 255, relating to injunction bonds, provides that no injunction shall operate until the party obtaining the same shall give an undertaking. It would hardly be claimed that in any of these cases the undertaking or bond would be effectual until filed and made a part of the record of the case. For the reasons stated in the Wisconsin cases the garnishment proceedings were without jurisdiction until May 11, 1889, when the affidavits were filed. Had they been contested down to that time they must have failed, and it will not do to allow the

State, ex rel. Austrian, Wise & Co., v. Duncan.

filing of the affidavits upon that date to have a retroactive effect, and render valid proceedings had long before, and which both the courts and interested parties might rightfully assume from the state of the record down to that time to be wholly invalid.

The next question which arises is as to the effect of the proceedings of May 17, 1889. The record shows that the attorney for the relators on that day asked for an order of distribution in favor of the relators and certain others, excluding the plaintiffs in the case of December 1; that there was a hearing upon this motion and a finding of the order of priority among the different plaintiffs. Section 232 of the Code provides that where several attachments are executed upon the same property or the same persons are made garnishees, the court, on motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments. This power clearly confers upon the court authority to consider such report as in other cases and adjudicate priorities. Section 946, relating to justices of the peace, provides that in such cases the justice issuing the first order served, on the motion of any of the plaintiffs may determine the amounts and priorities. It is claimed by the relators that the proceedings had on May 17 were not within the power conferred by these sections, for the reason that the validity of the proceedings was involved. In other words, respondent urges that the statute should be construed so as to restrict it to cases where the validity of the different orders is unquestioned. Such a construction practically defeats the statute, because in such cases there is usually no occasion for any adversary proceedings. We think the object of these sections was to provide a speedy and convenient method of determining such conflicting claims. The record shows that these proceedings were had upon the motion of the relators and they were bound thereby. If these proceedings remain in force they constitute an adjudication

State, ex rel. Austrian, Wise & Co., v. Duncan.

of the whole of the controversy against the relators which could only be attacked by appellate proceedings, and not collaterally.

The order of May 18 purports to vacate the proceedings of the 17th. Was it effectual for that purpose? The provisions regarding courts of records apply to county courts, while acting within their special jurisdiction, and such courts have the same powers as the district court to vacate judgments or orders during the term at which they were rendered. (Noakes v. Switzer, 12 Neb., 156; Volland v. Wilcox, 17 Id., 46.) An inspection of the calendar shows that May 18 was within the term as fixed by statute, and the order was therefore within the power of the court in those of the cases involving upwards of $200; and its effect was to vacate the proceedings of May 17 in those cases. There was one suit begun by W. V. Morse & Co., in which less than $200 was claimed, and another by Turner & Jay, of the same character. As to these cases the county judge had only the jurisdiction of a justice of the peace, and, except in those cases especially provided by statute, a justice of the peace has no power to set aside a judgment or final order after its rendition. (Cox v. Tyler, 6 Neb., 297; Templin v. Snyder, 6 Id., 491; State, ex rel. Carter, v. King, 23 Id., 540.) The order of May 18 was a nullity in the two cases referred to, and as to those the order of May 17 remained in force.

Finally, what was the effect of the proceedings of December, 1891? This was meant to be a proceeding under section 602 of the Code. It was brought within the time allowed by law; there was an appearance on behalf of relators, and the order of May 18 was set aside and distribution ordered in accordance with the order of May 17. By section 610 of the Code the provisions of 602 are made applicable to county courts. It will be observed that in the record of 1891 there was no express finding that the applicant had a "valid defense or cause of action." This