123 Minn. 330 | Minn. | 1913
Defendant Patterson recovered certain judgments against the Philadelphia Casualty Company, garnishee herein. In this action by plaintiff against Patterson, the money due on these judgments was sought to be empounded by garnishment pi’ocess pending the litigation. To that end and on January 11, 1913, plaintiff caused an affidavit in garnishment proceedings to be filed in the office of the clerk ■of the district court, and thereupon her attorney issued the usual garnishee summons, which was, on the same day, served upon the garnishee by delivering a copy thereof to the state insurance commissioner, as provided for by law for the service of process upon for■eign corporations. Thereafter the garnishee, appearing specially and for the purposes of the motion only, moved the court to set the service aside, on the ground among others that no action in the garnishment proceeding had been commenced or summons issued therein at the time of the service, and for that reason that the service and entire proceeding was invalid. The court granted the motion and plaintiff appealed.
There was presented to the court below, for and against the motion, an affidavit in support thereof by one of the counsel for the garnishee, ■an affidavit by counsel for plaintiff, and the files in the action. From which it appears that a summons in the main action is claimed by plaintiff to have been issued on January 11, the date of the garnishee summons, though it was not then delivered to an officer for service. It was not delivered to the officer until January 29, and the garnishee summons had been served over two weeks prior to that date. The .summons claimed to have been so issued was not dated, but gave notice that the complaint in the action had been and was on file in the ■office of the clerk of court. No such complaint was on file prior to the service of the garnishee summons, or before January 29. On these facts the trial court held that the garnishee summons and the service thereof were of no effect. Our conclusion is that the trial •court was entirely right. At any rate, the record presented a question of fact and its finding thereon, evidenced by the order made, that no summons had been properly issued cannot be disturbed.
The garnishment statute, section 4229, B. L. 1905, provides that,
Order affirmed.