, 1892-07-23
PIERCE COUNTY.

Henry T. Dittenhoefer ct al, respondents
VS.. The CGur d'Alene Clothing Com
pany ct al, appellants. From Pierce
county. No. Alb. Filed July Z, 1892.
The mere fact that the transcript wa:
two days late in reaching the clerk of thii
court should not in our Judgment work g
dismissal of the appeal.
Nor does there seem to have been any
necessity for giving the original judgment
defendant notice of the appeal. 1t was not
party to the garnishment order, decree OF
Judgment and was not mentioned in it, eX-
cept by incidental reference. And the like
remark is true of the North Pacific Insur-
ance company. Each garnishee stands
alone, and is not entitled in orders made
against others.
In response to the motion to strike the
statement of facts or at least parts of it,
because various papers, journal entries, or
ders, afidaYits, ETC., are mingled together,
when they clearly ought to have been sep
arated or that part should constitute the
transcript, and part the statement, we can
only enter a denial, since the whole thing
seems to have been certified by both the
judge and the clerk, both as statement and
as transcript. In this instance the ar
rangement adopted is not amiss, since the
chronological order Of the case is well pre-
served.
The motion is also based upon the state
ment that the original, and not a copy of
bA4C obhbCuAOnb VI laCIo nave DGDu nbuI up
The only evidence of the deliquency which
appears is that the judges signature is evil
IDENTIFY an original and not a copy; but the
clerk certiies that the statement here is a
copy, and he includes it in his transcript
as the statute requires, Again, counsel
says that they were not notified of the time
and place Of settling the statement ffacts /;
but the judge certihes that the statement
was settled and certified sin the presence
OF the attorneys of the respective parties, -
which concludes the matter.
The appellants here are the st. Paul Ger
man Insurance company and the Hekla
Fire Insurance companies. The respOn-
dents were citizens and residents of the
state of Oregon, and had claim for goods
sold against the CeUr d'Alene Clothing
company of Wallace, Idaho, which they
sued upon in the superior court of Pierce
county, August 1, 1890. On the same day
the respondents caused a writ of attach
ment to be issued agains the Ceur d'Alene
Clothing company as foreign corporation.
Appellants were foreign fire insurance cor
pOrations doing business regularly in
Washington, with a statutory attorney
resident at Tacoma. The sheriff of Spo-
kane county served garnishment notices
upon appellants soliciting agent ct Spo-
kane, intending thereby to secure the
claim of respondents upon insurance mon
ey due or about to become due from ap-
pellants to the Ceur 'Alene Clothing COM
pany, which had recently sustained a loss
by fire. These notices were served August
5, 1890, and the agent returned S10c1, as
claimed from each Of the appellants by the
insured, "subject to our adjustment"
On the first day of August, 1890, the sher-
iH of Pierce county attempted to make
service of notices Of garnishment under the
same writ of attachmentUpOn the attorney
of the appellants, residing at Tacoma, un-
der the Code of Pro. sec. 2722. But the at
tOrney was absent from the state and the
notices we're left with third person in his
Office. On the Sd day of October, 1852 the
attorney addressed a letter to the sheriff of
Pierce county, referring to the notice of
garnishment served on him August 1, and
to the policies Of 81, 900 each, and added:
"This amount is retained in my hands
subjectto the order of the court, but does
not become due until October 90"
On the II of December, 1890, the court
rendered judgment by default against the
principal defendant for $2,64824, and
against the appellants for 81 600 each.
1. As to the service upon the soliciting
agent at Spokane The act of March 81,
1890, sec. 10 (Gen. Stats. sec. 2722( appears
to have been intended to provide Tor a resi-
dent attorney of each foreign insurance
company upon whom all process should
be served, and we think that the provisions
Of the act Of February 2, 1888, authorizing
service of a summons upon certain agents
of insurance companies must thereafter
be restricted to the service Of summons
alone.
2. The jurisdiction of the court in this
case, then, depended on whether property
of the defendant, the Ceur d'Alene Cloth
ing company, was attached under the no
tice left with Powell for the attorney
Burns. For without the levy of an attach
ment the courts of this state could have
no jurisdiction of the principal defendant,
which was a foreign corporation, was never
served except by publication, and did not
appear or submit itself to the Jurisdiction.
The attempted service upon Burns was
void, as a notice of punishment must be
served personally. CLARK v. Chapman, 45
Ga. 1856; and was not cured by his admis-
sion that he had received the notice; but
we think his answer on October Sd was
sufficient to charge the appellants from
that date, and to uphold the Jurisdiction
But in the meantime it appears that on
August %, 1890, the appellant companies
had been garnished at the suit of Green
hood, Bohn & Co., for 81, ,226.38 and costs at
their home Offices, in st. Paul, Ramsey
county, Minnesota, which garnishments
were therefore entitled to be first liens on
the funds in the hands of the two compa-
MES.
Appellants raise the point that as they
are Ioreign corporations they are not sub
lect to garnishment proceedings in this
state. But it is well settled that where the
rlknL TO 40 business IN SGaJ6 Is COuCeQeQ
to foreign corporation by a statute such
as ours, wherein there is a condition that
II shall appoint an attorney upon whom
service in any proceedings in the courts
of the state may be made, the corporation
becomes a resident of the state, and to
such intents and PURPOSES a domestic cor
poratiOn. Barr v. King, SO Pa. st. 485.
Roche v. r. 1. Ins. Assn, 2 Bradwell 360.
Drake on Attachments, sec. 478.
But courts cannot, with any regard for
justice, do less than permit q corporation
to show that in some other equal juris-
dictiOn it has already become liable as
garnishee for the whole or a part of the
amount of its debt to the principal de-
fendant, and when that showing is made,
recognize priority and give judgment for
what remains.
Accordingly, in this case the judgment
will be reversed and remanded with in
structiOns to the court below to proceed to
enter judgment for such such such sums
against the appellants respectively as may
be made to appear by the pa1 ties to be due
from them to the Ceur d'Alene Clothing
company after the amounts due Green
hood, Bohn & Co. have been ascertained
by the Minnesota court In this way the
appellants will be required to pay their
debt but once, and the respondents will re-
ceive all that thew are entitled to.
And it is so oroered. Costs to appellant.
STILES, ].
We concur: Anders, G. j.; Hoyt, j.;
Dunbar, j.. Scott, J.
A Leader.
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