OPINION
This is аn appeal from an order denying a motion to set aside a default judgmеnt.
On May 2, 1967, a judgment in the amount of $2,058.18 was entered for appellee and against defendant Jack S. Elder. A writ of garnishment was issued and served on garnishee-appellant on January 3, 1968. On February 14, 1968, the appellant having failed to answer the writ оf garnishment, a default judgment in the amount of $2,058.18 was entered for appelleе against appellant. On March 19, 1968, appellant filed a motion to set аside the default judgment on the grounds of mistake and inadvertence or excusable neglect of its officer, and that the garnishee had a meritorious defense. To this was attached an affidavit of appellant’s vice-president stating that he had received the writ but that it was lost and that he had forgotten to notify appellant’s attorneys that it had been served. Following a hearing on the motion, an order denying it was entered September 26, 1968.
Appellant argues that the denial of the motion was an abuse of discretion. Our rules provide for the setting aside of a default judgment for good cause shown. Secs. 21-1-1(55) and (60), N.M.S.A.1953. This is a mattеr addressed to the sound discretion of the trial judge, whose- ruling will not be reversed except for abuse of that discretion. Wooley v. Wicker,
Appellant argues that the default judgment еntered against it is void because the amount was unliquidated and was granted without рroof. Sec. 21-1-1(55) (e), N.M.S.A.1953. This argument must fail. The amount had been fixed by operation of law when the judgment against the principal debtor Jack Elder was entered рrior to the issuance of the writ of garnishment against appellant. It was a liquidated amount. See Thomas v. Barber’s Super Markets, Inc.,
Appellant argues that the default judgment was void because the writ of garnishment was defective in that (a) the name of the garnishee did not appear in the caption as required by § 26-2-13, N.M.S.A. 1953, and (b) the writ did not advise the garnisheе that a judgment could be entered against it if it failed to answer. First, we observe that § 26-2-13 is not a mandatory provision but merely provides a permissible or recommended form to be used for the writ (“The following form of writ may be used * * * ”). While the name of the garnishee did not appear in the caption, it did appear in the body of the writ, and the recommended form was in every other way followed еxactly. We hold that the form of garnishment used substantially complied with the permissiblе form set out in § 26-2-13 (since repealed). Secondly, appellant did not raise the question before the trial court as to whether the writ must advise the garnishee of the consequences of its failure to answer. No real claim is made here that this is a jurisdictional question. Sec. 21-2-1(20) (1), N.M.S.A.1953; Drink, Inc. v. Babcock,
Concluding as we have, it is unnecessary to consider appellant’s last point. The judgment of the trial court is affirmed.
It is so ordered.