143 Iowa 21 | Iowa | 1909
Shortly prior to January 19, 1907, W. E. Lee obtained judgment against the Chicago, Milwaukee & St. Paul Railway Company in the district court of Dallas County for $1,000 for alleged personal injuries. At that time the plaintiff, Heaton, was the holder of a . judgment against Lee which had been rendered in a justice court of said Dallas County. An exechtion was issued thereunder by the justice, and on January 19, 1907, it was served by garnishment of the railway company as an alleged debtor of the execution defendant, Lee. On January 26, 1907, the railway company, garnishee, appeared and filed a written answer, averring, in substance, that a judgment for $1,000 had been rendered against it, but that it was about to appeal from said judgment and it denied liability to the defendant. Its written- answer closed with the following prayer: “Wherefore this, garnishee asks that these proceedings be stayed until the determination of its appeal in said suit now
It is readily apparent from this record that the pleadings filed by the garnishee on December 17th presented a radical change of front from those filed on January 26th. In justice to counsel it ought to be said that in the oral argument of this case such apparent
We would not hold that a garnishee may not amend its answer upon a proper showing, nor do we need to discuss the question of estoppel as applying to this case. We think it a clear ease of waiver resting in the very intent of the garnishee, and that such intent was made manifest to the opposing counsel by the pleading filed and was relied on by him. If the garnishee’s position be
We think the judgment of the district court was right, and it is affir'med.