
    MANVILLE v. THE BATTLE MOUNTAIN SMELTING COMPANY.
    
      (In the United States Circuit Court, District of Colorado,
    
    
      June 27, 1883
    
    
      On motion to quash garnishee summons).
    
    Garnishee Summons. Garnishee summons, like other process, must run in the name of the people. The Legislature may prescribe the form of process, but in doing so, the provision of the Constitution (Art. VI, Sec. 30) must be observed. That it is not in the form of other process, and is issued by the sheriff instead of the clerk, is not material. But in Courts of record, such process, beside running in the name of the people, must be made returnable as other summonses in Courts of record.
   Hallett, J.

(orally).

Manville recovered a judgment against the Battle Mountain Company in the District Court of Lake county, and took out execution and procured the Belden Mining Company to be summoned as garnishee. That company entered a motion to quash the summons and the return of the sheriff thereon, and removed the cause into this Court. The motion has been presented here.

Objection is made that the summons does not run in the name of the people, as required by the Constitution of the State (Art. VI, Sec. 30). And the objection seems to be well taken. Unquestionably the Legislature may prescribe the form of process, but in doing so, the provisions of the Constitution must be observed. This process appears to be in the form given in the statute (2 Sess., 79), but it is deficient, in that it does not run in the name of the people, as required by the Constitution. That it is not in the form of other process used in law actions is not important, and the circumstance that it was issued by the sheriff rather than the clerk, is not important. In these particulars the authority of the Legislature cannot be denied, but the Constitution cannot be disregarded.

Mr. Campbell, for plaintiff.

Henry T. Rogers, for garnishee.

The statute also provides that in Courts of record “the summons shall be made returnable and be served the same as other summonses in Courts of record,” and this seems to require that the time for answering shall be the same as in actions at law. In this instance, the summons was made returnable within ten days from the date of service. This is a fatal defect. The garnishee was entitled to ten days in which to appear and answer, and, if service was not made in the county where the judgment remained, -then to a longer time.

The motion will be allowed, and the cause dismissed.  