Gage v. Maschmeyer

72 Iowa 696 | Iowa | 1887

Seevees, J.

The defendant executed to one Kidder a promissory note, which was not negotiable. An action was brought against Kidder in Oerro Gordo county, and a judgment rendered against him therein by a justice of the peace. An execution was issued on the judgment, and placed in the hands of a constable of Cerro Gordo county, who went into Worth county, where the defendant resided, and, by virtue thereof, “ summoned the defendant, as a garnishee, to appear

before the justice in Cerro Gordo county, and answer as to bis indebtedness to Kidder.” In obedience to such notice or summons the defendant did appear, and answered that he was indebted to Kidder in the amount of said promissory note. Thereupon Kidder was notified to appear and show cause why judgment should not be rendered against the defendant as garnishee. He did appear, and asked that the defendant be discharged, which was overruled, and judgment rendered against the defendant. Before the appearance of the garnishee, the note had been assigned to the plaintiff. Such being the facts stated in a question certified to us, we are asked, in substance, whether the judgment against the garnishee is void because the justice did not have jurisdiction to render it. Whether the justice obtained jurisdiction over the defendant by his appearance we have no occasion to inquire. The material question is whether he obtained jurisdiction over the subject-matter of the action, which was the indebtedness due from the defendant to Kidder.

A proceeding in garnishment is in the nature of a proceeding m rem; and the res or thing which is the subject of the action must be before the court. The res in this case was the indebtedness due from the defendant Kidder. We are of the opinion that it was not before the court, for the reason that it had not been attached or levied upon, or seized under the execution; for whatever the constable did in Worth county was absolutely void. He had no power or right to levy an execution issued by a justice of the peace in Cerro Gordo county on property in Worth county, and the indebtedness * above mentioned was property. This view is sustained by Dock v. Singmaster, 62 Iowa, 511, and McDonald v. Moore, 65 Id., 171. The appellant cites and relies on Smith v. Dickson, 58 Iowa, 444. In that case the jurisdiction of the justice of the subject-matter — that is, the res — and of the defendant, was conceded. Besides this, there is a material difference in the facts in that case and the one at bar. The question asked must be answered in the affirmative, and the judgment of the district court is Affirmed.