148 A. 600 | R.I. | 1930
This is an action on the case brought under the provisions of Section 20, Chapter 351, General Laws 1923. The plaintiffs, in a suit against an employee of the defendant, attached his estate in its hands. The defendant did not file the return required by law nor did it avail itself of the provisions of Section 21, Chapter 353, and file an affidavit that it did not make a return through accident or mistake. In the present suit it filed a plea setting forth that, at the time of service of the writ in the suit against its employee, the deputy sheriff charged with the service of the writ paid it $1.10 when the lawful fee was $1.50, as the writ was returnable to the Eighth District Court. Plaintiffs demurred to the plea and the demurrer was overruled. The case coming on for trial the plaintiffs admitted that the facts were true as set forth in the plea and moved that a verdict be directed for the plaintiffs. The motion was denied and a verdict was directed for the defendant. The case is before us on plaintiffs' exceptions to the action of the court below in overruling the demurrer, in directing a verdict for defendant and in refusing to direct a verdict for the plaintiffs.
It is apparent from the record that the trial justice felt bound by the previous ruling on the demurrer and we may consider the exception to the action of the court below in overruling the demurrer under the provisions of Section 24, Chapter 348, General Laws 1923.
Section 22, Chapter 350, General Laws 1923, after providing the manner in which the writ shall be served to attach the personal estate in the hands of another, further provides: "shall tender to the person upon whom service is made the sum of two dollars and his travelling fee as witness in the superior court, and the sum of one dollar and like travelling fee if the writ is returnable in any other court. . . ."
The statutes relating to garnishment have always been strictly construed by this court. In Leonhard v. Hope Sons,
In Vaughan v. Furlong,
The plaintiffs contend that the defendant having accepted the fee as tendered by the deputy sheriff waived its right to the lawful fee. This contention is not tenable. It must appear that the defendant knew its rights before it can be said to have waived them. The record does not show that the defendant knew of the insufficiency of the fee and therefore it cannot be held to have waived its right thereto.
The plaintiffs further contend that the position of the garnishee is analogous to that of a witness who must respond to his summons or give notice that he has not been paid his lawful fees. Holden v. Shove,
A majority of the court is of the opinion that the plaintiff's exceptions should be overruled and the case remitted to the Superior Court for the entry of judgment on the verdict, and it is so ordered.