Hoops v. Culbertson, 17 Iowa 305

Hoops v. Culbertson

17 Iowa 305 | Iowa | 1864

WRIGHT, Oh. J.

The case has not been argued by appellants, and we are left to infer the grounds upon which they ask a reversal. We shall dispose of the case, by stating our views of the law, upon the main points made in the assignment of errors.

1. Practice: waiver of motion. The motion to vacate the order appointing the commissioner to take the answer of defendants, was never called to attention of the court, nor any action asked upon it. We can only presume, therefore, that it was waived. Hot only so, but it was based mainly upon the ground of the then existing injunction. As this was dissolved before the judgment was rendered, the objection made was removed, and defendants were not prejudiced. Then again, the judgment against them was ordered to be stayed (in view of the appeal in the injunction proceedings, we suppose), and thus in effect did they obtain the benefit of all that they could reasonably ask.

2. Garnishment: answer. The notice was served on the garnishees, March the 8th, 1860, and they answer that they were indebted to Bying-ton “ on the evening of the 7th, about the time of the service of garnishment, in the sum of, &e.” Upon this answer the court was justified in concluding that defendants were indebted at the time of the service. Aside from the language, “ about the time of the service, &c.,” the presumption is, that the indebtedness, *307if existing on tlie 7th, continued until they had notice of the proceedings against them. If it did not, it was their duty to have so stated, and rebutted the presumption thus arising. The injunction proceedings are not before us, and we are hence unable to ascertain the full extent and object of that proceeding. We cannot presume that the court violated the mandate of the writ, in allowing the commissioners to take the answer of the defendants before the dissolution of the injunction. Not only so, but as the injunction was afterwards dissolved, and that order affirmed in this court, the action of the court in appointing the commissioner, was at most an error without prejudice, and affords no ground for complaint. This disposes1 of the several points made, as we understand the record, and the action of the court is therefore

Affirmed.