This is an appeal from an order of the Municipal Court of j^ioux Falls refusing to permit the garnishee dеfendant to .serve and file an affidavit denying liabil *82 ity, after the statutory time for serving and filing such affidavit had expired. The garnishee defendant has appealed.
Respondent has moved to dismiss the appeal for the reason that the order appealed from is an intermediate order and appellant did not petition for an allowance of the appeal under SDC 33.0704. We have concluded that if this order does not fall strictly within the language of SDC 33.0701 (5), nevertheless the appeal shоuld be allowed under the rule announced in Northwestern Engineering Co. v. Ellerman,
The affidavits relating to the facts are in sharp conflict. The entire matter having been presented below upon affidavits it is thе duty of this court to review the evidence unhampered by the rule that a trial judge who has observed the demeanor of the witnesses, is in a better position to intelligently weigh the evidence than the appellate court. Fairmont
&
Veblen R. Co. v. Bethke,
We have considered the affidavits of the parties and all affidavits submitted in support of and in opposition to the motion. The facts as we have determined them are as follows: The Garnishee defendant, who we will hereinafter refer to as the defendant, was served with the garnishee summons on February 25, 1955. He had ten days thereafter to answer and make disclosure. SDC 33.2803. He did nothing until this application was made on April 20, 1955, almost two months after the service. He had previоusly been served with a garnishee summons and by calling the plaintiff in that action the matter was adjusted. Defendant states that when he was served with the garnishee summons he advised the process server that he оwed the principal defendant nothing and was then told, “Forget about it and pay no more attention to it.” The man who served the summons denied making any such statement, but accepting defendant’s version оf the incident loses its force because of the telephone conversations which we have determined he had with the attorney for plaintiff. The first of these conversa *83 tions was on April 1, at whiсh time defendant was 'advised he was in default, but that he should make a disclosure and have his liability determinеd. A few days later the attorney again called defendant and advised him to make a written disclosure so the matter could be determined. Defendant did nothing until after plaintiff commenced enforcing thе liability defendant had incurred by his default, which was more than ten days after the telephone convеrsations above referred to.
The question presented is whether the trial court abused the discrеtion with which it is vested under the provisions of SDC 33.2802 and SDC 33.0108. We must start with the premise that the statute, SDC 33.0108, is remedial and should be liberally applied to the end that justice be done. McConnell v. Margulies,
As often stаted, each case of this character must be determined from the particular facts and circumstances presented, and no purpose would be served in discussing the facts in the several cases presented to' this court. We have considered these cases and each is clеarly distinguishable on the controlling facts.
Attorney for appellant in his brief has made an accusation of prejudice and bias against the trial judge. The record is devoid of any basis for this accusation, and it becomes the duty of this court to reprimand the attorney for injecting into this lawsuit this unwarranted attack upon the trial judge.
The order appealed from is affirmed.