Herbert v. Bicknell/Opinion of the Court

This is an action of assumpsit begun on June 30, 1909, in the district court of Honolulu, by garnishment and leaving a copy of the summons at a place which, according to the return, was the defendant's last and usual place of abode, he being absent from the territory. The defendant did not appear and the plaintiff got judgment against the fund on July 2, 1909. No appeal or writ of error was taken, but on December 31, 1909, the time for suing out a writ of error not having expired, the defendant appeared specially and moved to quash the service and set aside the judgment on the ground that the record showed that there was not sufficient service upon him to comply with the 14th Amendment and the laws of Hawaii. The motion was accompanied by an affidavit to the effect that the defendant had changed his domicil to Australia before the beginning of this suit, that he had returned and lived for a month in January and February, 1909, at the place where the summons was left, and then had gone back to Australia; and that his last and usual place of abode (before his change of domicil, as we understand it) was at Waikiki. The district court overruled the motion and its judgment was affirmed by the supreme court.

The argument for the plaintiff in error assumes a wider range than is open upon this motion. The supreme court says that the question whether the evidence was sufficient to support the judgment cannot be raised in this way, and we should follow the decision even of it seemed less obviously reasonable than it does. Montoya v. Gonzales, 232 U.S. 375, 376, 58 L. ed.--, 34 Sup. Ct. Rep. 413. Moreover, the only errors assigned here are in holding that the service prescribed by § 2114 of the Revised Laws of Hawaii, as construed by the court, and that leaving a copy of the summons as above stated after garnishment of a debt due to the defendant, were sufficient to meet the requirements of the 5th Amendment (the court having assumed that the defendant referred to the 5th when he mentioned the 14th in his motion below).

The supreme court was of opinion that, if the question was open, leaving a copy of the summons at the place where the defendant last had stopped was leaving it at his last and usual place of abode within § 2114. On that point we see no sufficient reason for disturbing the judgment. Phoenix R. Co. v. Landis, 231 U.S. 578, 579, 58 L. ed.--, 34 Sup. Ct. Rep. 179. Really the only matter before us that calls for a word is the decision that a judgment appropriating property within the jurisdiction to payment of the owner's debt, which would be good if the property itself were the defendant, is not made bad by the short and somewhat illusory notice to the owner. Upon this point the court below relied upon the above § 2114 and Pennoyer v. Neff, 95 U.S. 714, 727, 24 L. ed. 565, 570: 'The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale.' It has been said from of old that seizure is notice to the owner. Scott v. Shearman, 2 W. Bl. 977, 979, 11 Eng. Rul. Cas. 17; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9,030. See Cooper v. Reynolds, 10 Wall. 308, 317, 19 L. ed. 931, 932.

Summons of the defendant's debtor by garnishment is given like effect in express terms by § 2114. 'Such notice [i. e., service on the garnishee] shall be sufficient notice to the defendant to enable the plaintiff to bring his action to trial unless the defendant be an inhabitant of this territory, or has sometime resided therein, and then a like copy shall be served personally upon him, or left at his last and usual place of abode.' This statute was in force, no doubt, before the debt garnisheed was contracted, and gave the defendant notice that he must be ready to be represented in order to save a default if the debt was attached. If he had appeared, nothing shows that proper time would not have been allowed to produce evidence at the trial. The district court has jurisdiction over small debts only. Rev. Laws of Hawaii, § 1662. Its proceedings naturally are somewhat summary. It appears that the defendant had knowledge of the action before the time for a writ of error had expired, and when it may be that it still would have been possible to set aside the judgment and to retry the case. He did not adopt the course that would have opened effective ground of attack even as the record stood. We cannot discover that he has suffered any injustice-still less that he has been subjected to an unconstitutional wrong.

Judgment affirmed.