200 P. 451 | Mont. | 1921
delivered the opinion of the court.
On June 12, 1919, the plaintiffs caused execution to issue upon a judgment theretofore made and entered in their favor against the defendants. Service of the execution was had upon the Bank of Twin Bridges, together with notice of garnishment, seeking to levy upon moneys supposed to be in the possession of the bank, belonging to defendants. In answer to the garnishment the bank in substance denied being
The decisions of this court, supplemented by those from other
Parker v. Page, 28 Cal. 522, relied upon by the respondents, does not find support in the great weight of authority, nor have the more recent decisions of the California court approved, in its entirety, the rule enunciated in that case. (Hartman v. Olvera, 51 Cal. 501; Lewis v. Chamberlain, 108 Cal. 525, 41 Pac. 413.) The conclusion reached under the facts peculiar to that case undoubtedly is correct, but we
The garnishee herein denied any indebtedness to the defendants, and denied having in its possession any property belonging to them, and hence it was idle for the court to pursue its inquiry further, for it thereupon became powerless to determine the bona fides of such denial, and could only invoke the provisions of section 6854, Revised Codes, by ordering that an action be instituted to determine the fact in dispute, or discharge the garnishee.
We think the court clearly exceeded its jurisdiction, and that the order complained of is null and void, and hence we recommend that the case be remanded to the district court of Musselshell county, with directions to vacate and set aside the order.
Per Curiam : For the reasons given in the foregoing opinion, the cause is remanded to the district court of Musselshell county, with directions to vacate and set aside the order.
Remanded.