82 Neb. 201 | Neb. | 1908
■ This was an action to quiet title as against the alleged lien of a judgment or order in garnishment. On the 4th
1. The defendant contends that the order made by the justice requiring the plaintiff to pay the amount of the judgment against Anderson into court was not a judgment within the meaning of the statute (code, secs. 477, 561, 562) making judgments a lien upon the real estate of the judgment debtor. The provisions of the code regulating proceedings against garnishees after judgment and execution returned unsatisfied provide that, in all cases where the garnishee in answering the interrogatories propounded to him shall disclose that he is indebted to the- defendant in execution, the court shall order the garnishee to pay over the amount found to be due from the said garnishee to the defendant in execution, which amount shall be collected by execution as in other cases, as near as may be. Code, sec. 249. No proceeding other or further than the entry of the order is provided for or indicated in the statute, and it is plainly the order to pay over the amount found due that is to be enforced by execution. Section 428 of the code provides that “a judgment is the final de
The defendant relies upon the case of Clark v. Foxworthy, 14 Neb. 241, to sustain her position that such order does not amount to a judgment; but we do not think that case supports her contention. It is there held that an order for the payment of money under section 249 of the code can be rightly made and enforced by execution only upon an unqualified admission by the garnishee of a present indebtedness which the execution debtor would be entitled to but for the garnishment. This is a correct statement of the law which should govern the courts in acting upon the disclosure of a garnishee; but it expressly recognizes the power of a court in a proper case to make an order which can be enforced by execution, and has therefore the quality of a judgment. Hollingsworth v. Fitzgerald, 16 Neb. 492; Burlington & M. R. R. Co. v. Chicago Lumber Co., 18 Neb. 303. And in Cobbey v. Wright, 34 Neb. 771, it was held that such a judgment, void for facts extrinsic the record, would be set aside and the apparent lien declared of no effect. We are therefore of the opinion that such an order, when made by the district court or docketed in the office of the clerk of the district court upon a transcript from a justice of the peace, creates an apparent lien upon the real estate of the garnishee in the county in which the. same is docketed.
2. Under the provisions of our statute (Comp. St. 1907, ch. 73, sec. 57), “an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.” That an apparent judgment lien is an interest within the meaning of the word as used in
3. This brings us to the consideration of the objections which are urged against the validity of the judgment. It appears that the garnishee was first summoned in 1901, and answered concerning his indebtedness, after which disclosure he was told that that was all, and that he could go. No order was entered against him upon this proceeding. He was again summoned in May, 1904, and examined concerning his supposed indebtedness to the judgment debtor, especially upon two notes which he had given to the judgment debtor, or to the judgment debtor’s sister-
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.