Montana Attorney General Opinion 16-165

Opinion No. 165. Justice of the Peace-Attachments- Executions-Garnishments, Service of -Mail, Service By-8tate Auditor. HELD: 1. That part of Section 9661, R. C. M. 1921, which authorizes a justice of the peace to issue a writ of attachment and direct the same to the sheriff of a county other than his own for service, is in conflict with the Constitution and is therefore in- valid. 2. Attachments and garnishments, and executions and garnishments may be issued by a justice of the peace of any township in Lewis and Clark County and served upon the State Auditor by the sheriff of, or a con- stable of any township in, said coun- ty. Service cannot be made by a. private individual or by mail. September 5, 1935. Hon. John J. Holmes State Auditor The Capitol Your letter to us of recent date is as follows: "Your opinion is respectfully re- quested as to whether or not gar- nishments, run in aid of execution or attachment as issued out of a justice court other than the town- . ship in which the State Capitol building is located, may be served upon the State Auditor and, by so being served, impound moneys due and owing to state employees." The information sought involves a consideration of certain constitution- al and statutory provisions. Section 20, Article VIII of the Constitution declares that "justices' courts shall have such original jurisdiction within their respective counties as may be prescribed by law." Section 8836, Revised Codes of 1921, is as follows: "The civil jurisdiction of justices' courts extends to the limits of the county in which they are held, ann mesne and final process of any justice court in a county may be issued to and served in any part of the county." 168 OPINIONS OF THE ATTORNEY GENERAL Section 9661 provides that a writ of attachment issuing out of the justice court "may be directed to the sheriff or any constable of the county, or thc sheriff of any other county, and must require him to attach and safely keep all the property of the defendant in his county not exempt from execu- tion." Section 9694 provides that. a writ of execution issuing out of the justice court "must be directed to the sheriff or a constable of the county" and requires him to do th~ things specified therein. Section 9711 rro·· vides that "justi~es of the peace may issue subpoenas in any action or pro- ceedings in the courts held hy thcm, and final process on any judgment rt'- covered therein, to any part of the county." The law relating to at- tachments, so far as district court practice is concerned, is found in Sections 9256-9300, Revised Codes 1921. Section 9294 is as follows: "Money, credits, or other property be- longing to or due and owing to an- other, in the possession of or under the control of a public officer or board, including all off~ccrs or boards of a county municip ... .l corporation, and school district, 0': sta;:~ I"'lard or state goyernment, m:1~' he a"Ctacht,ct or garni"hed while in !":lr:h pOSS'~flsjl)n or under such control, by making service, as provided in Section 9262, upon the clerk of the county or chair- man of the board of county commis- sioners, the city clerk or mayor of a municipal corporation, or upon the clerk of the board of school trustees or chairman of such board, as tl~3 case may be." The law relating to executions, so far as the district court practice is concerned, is found in Sections 9416- 9453, Revised Codes 1921. Section 9452 is as follows: "The provisions of Section 9294 of this cod(', relating to the garnishment of publi<.. offic~rs, apply to the levy of an cxecution." By Section 9662 "Seeti0113 9261 to 9293, both inclusive, ;lre made appli·· cable to attachments issued in jus- tice's courts," and ;)y Section 9694 an execution issued b~' the justice "must contain, in like cases, slmilar directions to the sherlif or constable as are required by the pl'ovisions of Sections 9416 to 9453 of the code, in an execution to the sheriff, except that it shall not direct the officer to in any manner levy upon or satisfy the judgment, or any interest thereon, from any real property." Section 9696 is as follows: "The sheriff or constable to whom the execution is directed must execute the same in the same manner as the sheriff is re- quired by the provisions of Sections 9416 to 9453 of this code, to proceed upon executions directed to him; and the constable, when the execution is directed to him, is vested for that pur- pose with all the powers of the sher- iff." The word "process" signifies a writ or summons issued in the course of judicial proceedings. (Section 16, R. C. M. 1921; 50 C. J. 441.) A writ of attachment is mesne process (6 C. J. 32; 50 C. J. 445; Fletcher v. Morrell, 44 N. W. 133; Birmingham Dry Goods Co. v. Bledsoe, 21 South. 403), and a writ of execution is final process. (23 C. J. 305; 50 C. J. 445; Crowell v. Kopp, 189 Pac. 652.) Since Section 20, Article VIII, of the Constitution confines the terri- torial jurisdiction of justices' courts to their respective counties, it would seem that so much of Section 9661. supra, as authorizes a justice to issue a writ of attachment and direct the same to the sheriff of a county other than his own for service is in con- flict with the fundamental law and therefore invalid. The provisions of the Constitution are mandatory and prohibitory. (Section 29, Article III, Authorities more or less in point are: 15 C. J. 728; 35 C. J. 536; 16 Ruling Case Law, page 363, Sec. 42; 17 Standard Proc. \981; Bank of Gassa- way v. Stalnaker, 71 S. E. 183; Ameri- can Historical Soc. v. Glenn, 227 N. Y. S. 174, aff. 162 N. E. 481; White v. Deegan, 141 S. E. 396; People v. City Court of East st. Louis, 170 N. E. 210; State v. Magney, 72 N. W. 1006; Wilcox v. Conklin, 99 N. E.' 669; State v. Nixon, 134 S. W. 538; Mott Store Co. v. St. Louis & S. F. R. Co., 158 S. W. 108; Konold v. Rio Grande W. Ry. Co., 51 Pac. 256; Canadian Valley Bank v. Cook, 247 Pac. 370; Stuart State Bank v. Waters, 232 Pac. 70; Searl v. Shanks Bank of Grandin, 82 N. W. 734; State v. Brayman, 12 Pac. 111; Limerick v. Gorham, 15 Pac. 909; Conor Agt. Hilton, 66 Howard OPINIONS OF THE ATTORNEY GENERAL 169 144; Mallet v. Uncle Sam Gold Min- ing Co., 1 Nev. 188; McCullough v. Scott, 109 S. E. 789. It will be observed that Section 9662 does not expressly make Section 9294 applicable to justice court prac- tice but that Sections 9694 and 9696 do expressly make Section 9452 appli- cable to justice court practice. Sec- tion 9717, Revis~d Codes 1921, is. as follows: "Justices' courts, bemg courts of peculiar and limited juris- diction, only those provisions of this code which are in their nature appli- cable to the organization, powers, and course of proceedings in justices' courts, or which have been made ap- plicable by special provisions in Sec- tions 9619 to 9728 of this code, are applicable to justices' courts and the proceedings therein." In view of all the circumstances and the language of the section just quoted there can be little doubt that the provisions of Section 9294 are applicable to justices' courts. (Ex parte Latimer, 47 Cal. 131; Classroom Teacher v. Superior Court, 18 Pac. (2d) 746; Teel v. Jus- tice's Court, 24 Pac. (2d) 899.) It is our conclusion, therefore, that attachments and garnishments and executions and garnishments may be issued by a justice of the peace of any township in Lewis and Clark County and served upon the State Auditor by the sheriff of, or a constable of any township in, Lewis and Clark Co~ty. Service cannot be made by a pnvate individual as such, or by mail, as in- vestigatio~ discloses has occasionally been attempted. (6 C. J. 213-216.) Note: The same conclusion is reached by different reasoning in 3 Report and Official Opinions of At- torney General, page 350.