131 N.W. 517 | N.D. | 1911
Upon February, 14, 1908, when fire destroyed defendant’s store and contents, he was indebted to many creditors, including plaintiff, to whom he owed over $700. Six insurance companies sustained losses upon policies of insurance, this garnishee being liable upon a policy of $1,000. The funds in the hands of the insurance companies were garnisheed by the different creditors. This garnishee was served with some five or six garnishee summonses, this plaintiff having the fifth claim upon the funds in its hands. This suit was begun March 25, 1908, and judgment was entered against this garnishee by
The district court granted the relief applied for, conditioned that the garnishee pay the amount due under the policy into court, and pay to the plaintiff $25 costs. This appeal is from such order, and it is urged that the foregoing affidavit neither excuses the delay nor shows a proper form of an affidavit of merits.
(1) We think the facts shown excuse the delay. Up to the time of the entry of the judgment, the garnishee had reason to believe a disclosure had been made. After discovering the judgment, the garnishee relied upon the proposed stipulation to relieve itself from the judgment. As the stipulation had been signed by this plaintiff, it was but natural that this garnishee should rely for relief upon its completion before applying to the court. As soon as it was known that the stipulation had failed, the appeal was made to the district court.
(2) It is contended that the affidavit of merits is defective for failure to state that all of the facts of the case had been submitted to an attorney, and his opinion obtained that the evidence set up is meritorious. We do not believe the above statement necessary, where, as in this case, all of the facts of the care are set forth and presented, for the court itself to pass upon the merits. There are two forms of affidavits of merits recognized by the courts. The older form, wherein all of the facts are set out for the inspection of the courts, and the other form, wherein affiant states that he has submitted all of the facts to his attorney, and has by him been advised that his defense is meritorious. The latter form has been in general use in North Dakota since statehood, and will, of course, be'recognized by this court. However, we
The order appealed from was right, and is affirmed.