Page:North Dakota Reports (vol. 48).pdf/493

 complaint did not state a cause of action; that there is no statutory limitation, in garnishment proceedings, upon the time when an affidavit for publication must be filed; that it was not necessary for Smeland to proceed with publication of the summons against Flynn within 60 days after e service upon the garnishee.

We are of the opinion that the trial court erred. The jurisdiction of the trial court in the action against Flynn and in the garnishment proceeding were mutually dependent upon appropriate proceedings in each action. The garnishment proceedings, although deemed an action. § 7581, C. L. 1913, were nevertheless dependent upon jurisdiction in the main action. If no jurisdiction would be secured against the defendant, no jurisdiction would remain in the garnishment proceedings upon which a judgment might be rendered against the garnishee. To permit the garnishment process to be served and the jurisdiction of the trial court to obtain over the “res,’ it was necessary that a summons in the main action simultaneously issue. § 7568, C. L. 1913. The court might acquire a jurisdiction either by the service of the summons or the service of the garnishee summons. § 7583, C. L. 1913. Upon this service of the garnishee summons herein the court acquired a jurisdiction. The garnishment proceedings thereupon were deemed an action by Smeland against the plaintiff, as garnishee, and Flynn, as the defendant. § 7581, C. L. 1913. The garnishment action was then an action pending. The court then possessed jurisdiction to proceed by publication of the summons in the main action. The main action and the garnishment action were then mutually dependent upon the other for the retention of jurisdiction.

Jurisdiction, if it existed at all, was necessarily predicated upon the nonresidence of the defendant. Otherwise, the garnishment proceedings would be void because no service was made upon the defendant. § 7571, C. L. 1913.

Section 7383, C. L. 1913, provides that an action is commenced by the service of a summons; that an attempt to commence an action is deemed equivalent to the commencement thereof, when the summons is delivered with the intent that it shall be actually served to the sheriff or other officer af the county in which the defendant resides, etc.; that such an attempt must be followed by the first publication of the summons or the service thereof within 60 days.

The contention of the respondent that this section only concerns the statute of limitations, as stated in the subsequent sections, must be