184 Iowa 1065 | Iowa | 1918
To go back to the original case, the plaintiff therein began suit, aided by an attachment against a nonresident defendant. He served his attachment by garnishment of the garnishee bank. The bank answered, and disclosed by its answer that it was not indebted to the defendant, and that it had no funds in its hand's the property of the defendant. Such was the undoubted legal effect of the answers of the garnishee. These answers were never controverted. Such was the condition of the record on October 4th, 1917, when, through the inadvertence of the attorney for the plaintiff (whose good faith is not questioned by respondent herein), he advised the court that the garnishee’s answers admitted liability. Upon such representation, the court signed a prepared order, condemning the property in the hands of the garnishee, and entered judgment against it.
The point now urged by the petitioner is that the motion of the garnishee, filed January 14, 1918, came too late, and that the court had no jurisdiction to entertain it. It is said that, under the provisions of Section 4093 of the Code, the motion should have been filed on or before the second day of the succeeding term of the court. It is not denied that a petition might have been filed at any time within one year. We deem it not very material, in this particular case, whether the application of the garnishee shall
Furthermore, Chapter 75 of the Acts of the Thirty-seventh General Assembly, relating to practice in municipal courts, provides:
“Section 1. * * * that within one year from the rendition of final judgment proceedings may be brought to reverse, vacate or modify the same, as provided in Chapter 1, Title XX, of the Code, for vacating or modifying final judgment or order of the district court.”
Chapter 1, Title XX, of the Code includes Section 4093, which is as follows:
“Proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining judgment or order, shall be by motion served on the adverse party or his attorney, and within one year; if made to vacate a judgment or order because of irregularity in obtaining it, such motion must be made on or before the second day of the succeeding term.”
It will be noted by this section that proceedings to correct or vacate a judgment for irregularity in obtaining the same “shall be by motion.” This motion must be filed “within one year,” with the exception that, “if made to vacate,” the motion must be made on or before the second day of the succeeding term. It is urged by the respondent that the exception last stated can have no application to practice in the municipal court, because it is a continuing court, and has no terms. We think the point is well made. This is emphasized by the fact that, though Chapter 75 of the Acts of the Thirty-seventh General Assembly makes Section 4093 a part thereof, by reference, yet it expressly provides, as above quoted, that, “within one year from the