#### MARTHA A. HUDSON v. ARTHUR H. PATTERSON and Another.1

November 7, 1913.

Nos. 18,327 — (77).

Garnishment.

1. Tbe garnishment statute, section 4229, R. L., contemplates and requires as essential to the right to proceed thereunder that either the main action be pending, or that it be commenced by issuing a valid summons therein, at the time of the issuance of the garnishee summons.

Garnishee summons invalid.

2. Where a garnishee summons is issued before the commencement of the action, the service thereof upon the garnishee is invalid and of no effect.

Action in the district court for Ramsey county. The Philadelphia Casualty Company was served with garnishee summons as a supposed debtor of defendant in that action. The garnishee appeared specially and obtained an order directing plaintiff to show cause why the service of the garnishee summons should not be set aside upon the ground that the same was improvidently issued, that the court had no jurisdiction of the subject matter of the garnishee proceeding or of the garnishee, and because garnishee process could not be issued against such garnishee so long as it was a judgment debtor and liable only upon executions issued against it as such judgment debtor, and upon the ground that it manifestly appeared by the record that the judgments against such garnishee were paid and satisfied prior to the commencement of any action in the district court against said defendant. From an order, Catlin, J., dismissing the garnishee proceedings and discharging the garnishee, plaintiff appealed.

Affirmed.

*David F. Peebles*and *Loomis, Keller & Schwartz,*for appellant.

*Briggs, Thygeson & Everall,*for respondent.

1

 Reported in 143 N. W. 792.

*331Brown, C. J.

Defendant Patterson recovered certain judgments against the Philadelphia Casualty Company, garnishee herein. In this action by plaintiff against Patterson, the money due on these judgments was sought to be empounded by garnishment pi’ocess pending the litigation. To that end and on January 11, 1913, plaintiff caused an affidavit in garnishment proceedings to be filed in the office of the clerk ■of the district court, and thereupon her attorney issued the usual garnishee summons, which was, on the same day, served upon the garnishee by delivering a copy thereof to the state insurance commissioner, as provided for by law for the service of process upon for■eign corporations. Thereafter the garnishee, appearing specially and for the purposes of the motion only, moved the court to set the service aside, on the ground among others that no action in the garnishment proceeding had been commenced or summons issued therein at the time of the service, and for that reason that the service and entire proceeding was invalid. The court granted the motion and plaintiff appealed.

There was presented to the court below, for and against the motion, an affidavit in support thereof by one of the counsel for the garnishee, ■an affidavit by counsel for plaintiff, and the files in the action. From which it appears that a summons in the main action is claimed by plaintiff to have been issued on January 11, the date of the garnishee summons, though it was not then delivered to an officer for service. It was not delivered to the officer until January 29, and the garnishee summons had been served over two weeks prior to that date. The .summons claimed to have been so issued was not dated, but gave notice that the complaint in the action had been and was on file in the ■office of the clerk of court. No such complaint was on file prior to the service of the garnishee summons, or before January 29. On these facts the trial court held that the garnishee summons and the service thereof were of no effect. Our conclusion is that the trial •court was entirely right. At any rate, the record presented a question of fact and its finding thereon, evidenced by the order made, that no summons had been properly issued cannot be disturbed.

The garnishment statute, section 4229, B. L. 1905, provides that, *332“in an action in a court of record or justice court for the recovery of money, if the plaintiff, his agent or attorney, at the time of issuing the summons, or at any time during the pendency of the action? * * * files with the clerk of the court * * * an affidavit,”' setting forth the necessary facts, a garnishee summons may be issued.. This statute will bear but one construction, and to tbe effect that essential to tbe right of garnishment there must be at the time tbe garnishee summons is issued a pending action, or that one be then commenced by tbe issuance of a proper summons. Tbe statute is unlike tbe attachment statute where tbe writ may be issued before tbe formal commencement of tbe action, and is valid, if tbe action be begun? within “sixty days” thereafter. Section 4215, R. L. 1905. Whiletbe garnishment statute limits tbe right to that remedy to a pending action, or “at tbe time of issuing tbe summons” therein. This clearly means more than tbe clerical act of filling out tbe blank form of' summons. It contemplates an issuance of a summons' in tbe usual and ordinary manner and that it be valid and in all respects in compliance with tbe requirements of tbe statute on tbe subject of tbe commencement of an action. In this case tbe summons, if prepared ontbe eleventh of January, remained in tbe bands of tbe attorney until' tbe twenty-ninth, and was fatally defective in that no complaint was-on file as stated therein. There was then no action commenced or-summons issued when the garnishee summons was served, within the-meaning of tbe statute, and tbe service thereof was properly set aside. Tbe summons in tbe main action, under tbe circumstances stated, was-not in contemplation • of law issued until tbe complaint was filed,, namely, on January 29. Tbe case of Crombie v. Little, 47 Minn. 581, 50 N. W. 823, is not in point. Tbe proceedings there held valid; were attacked collaterally, and not directly as in tbe case at bar.

Order affirmed.