131 Minn. 75 | Minn. | 1915
' Plaintiff and defendant both reside- in the state of Nebraska. At a time prior to June, 1914, plaintiff was in the employ of defendant, and
“And further the garnishee alleges as a fact, that under the laws of the state of Nebraska, the garnishee in this action would not be liable either to the plaintiff or the defendant until the defendant had satisfied the judgment which was rendered against him.”
Plaintiff had judgment against defendant for the amount of the Nebraska judgment, and thereafter moved the court for judgment against the garnishee upon the disclosure. The garnishee moved that it be discharged, and the motion was supported by affidavits of attorneys resid
Judgment can be ordered against a garnishee on his disclosure only when he admits that he is indebted to defendant, or has money or property in his hands or under his control belonging to him, or when the facts disclosed by him clearly and beyond doubt show that such is the case. And, where judgment is demanded on the disclosure, the answers and statements of the garnishee must be taken as true; if the plaintiff is not satisfied therewith, his only course is to proceed by supplemental complaint in the manner pointed out by the statute. Vanderhoof v. Holloway, 41 Minn. 498, 43 N. W. 331; Stub v. Hein, 129 Minn. 188, 152 N. W. 136. In the case at bar it does not appear that the garnishee has either money or property in its hands or under its control belonging to defendant. The possession of money or property belonging to defendant is not claimed by plaintiff. The claim is that the garnishee is indebted to defendant under the indemnity contract, and it is sought to charge it therewith in this action. In response to this claim the garnishee admitted the existence of the contract hut denied liability thereunder. The contract is one against loss or damage suffered by the indemnitee, not against liability, • and it was alleged and claimed that under such a contract no recovery can be had under the law of Nebraska, unless loss or damage has in fact been suffered. And this seems to be the law of that state. Honaker v. Yesey, 57 Neb. 413, 77 N. W. 1100; Forbes v. McCoy, 15 Neb. 632, 20 N. W. 17; Gregory v. Hartley, 6 Neb. 356.
Such was the state of the case as left by the disclosure, and we have only to determine whether the facts bring it within the rule requiring the plaintiff, where the liability of the garnishee is denied or doubtful on the disclosure, to proceed by supplemental complaint. We answer this question in the affirmative.
The contract was entered into in the state of Nebraska, where plaintiff and defendant resided, and where the garnishee was lawfully trans
The issue of liability was sufficiently raised by that part of the disclosure which alleged that under the laws of Nebraska the garnishee was not liable until defendant had paid the judgment. 10 Standard Enc. Proc. 535, et seq. It presented a question of fact, for the courts of one state do not take judicial notice of the common or statutory law of a sister state. In the absence of any evidence upon the subject the common law is presumed the same in each state. But when an issue is raised the question resolves itself into one of fact to be heard and determined as other issues are heard and determined. In garnishment proceedings, where the question of liability is raised by the disclosure, the only course open to plaintiff in the action is by supplemental complaint. Bradley v. Thorne, 67 Minn. 281, 69 N. W. 909; Pitzl v. Winter, 96 Minn. 499, 105 N. W. 673, 5 L.R.A. (N.S.) 1009. The issue cannot be litigated before the clerk in the disclosure proceedings, or tried out upon affidavits upon a motion for judgment against the garnishee, or upon a motion for his discharge, but only in the manner pointed out by the statute. G. S. 1913, §7870. And in the face of the denial of liability in the case at bar plaintiff was not entitled to judgment on the disclosure.
Judgment reversed, and cause remanded for further proceedings.