34 Neb. 790 | Neb. | 1892
A motion for a rehearing has been filed in this case on behalf of the plaintiff. In the brief accompanying the motion it is earnestly insisted that the decision of the court below was placed upon the ground that a judgment was not subject to garnishment, and not upon the ground that the property was exempt. We have no means of knowing whether the court below placed its decision upon the grounds stated or not, although the capable judge, before whom the case was tried, probably did not find it necessary to consider more than the first ground set forth. But whether he did or not is immaterial. This court does not find it necessary to go into a consideration of the second question. The attorneys also grow eloquent over the innocence of their client in the garnishment proceedings. In the brief for a rehearing it is said: “I humbly confess that I had supposed that it was settled in the ease of Turner v. Sioux City & Pacific P. Co., 19 Neb., 241, that where a garnishee disclosed in his answer all he knows at the time of answering concerning his indebtedness to the attached debtor, and all his relations to him and all he knows about his condition, then the law will protect him. It is said in that case: ‘ Nor is it alleged that the defendant had any knowledge that the plaintiff herein was the head of a family when the answer in garnishment was made.’ It is not alleged in the answer in the case, nor is it anywhére attempted to be proven, that at the time the answers in garnishm'ent were made in the first two instances that plaintiffs knew, or had any reason to know, that Heath was a married man or the head of a family, or that he desired to claim or could claim this money as exempt. And in that same case, and by the same justice who writes the opinion in this case, I find this language: ‘ Where the employe is the head of a family, and • not more than sixty days’ wages are due him for his services, it is the duty of the garnishee to set up these facts
It is very evident that the plaintiff misapprehends the decision of the court. The mild language used in characterizing the transaction is assumed as a basis for holding Mace up as an innocent garnishee and entitled to protection. If the case presented shows him to be such, then his rights to protection, provided a judgment is subject to garnishment, are undoubted. In the conclusión we have reached it is unnecessary to consider the second proposition. But
It may be well to look at the original cause of action in order to understand the nature of the judgment. The record in that case shows that prior to May 3, 1887? Heath had been engaged in the feed business in Omaha; that at that time he sold out to Mace <fe Clement for the sum of $1,008; of this sum, $400 was paid in cash and two notes were given, each for the sum of $304. Heath was compelled to bring suit upon both of these notes, although no defense was set up against the notes themselves. It is true a counter-claim was pleaded, which was not allowed, and a set off of $139.60, which the plaintiffs herein claimed to have purchased before the bringing of the suit, and which seems to have been allowed. There was also a chai’ge of alteration of the notes, which was not sustained, The defense in that case was so trivial that had our law permitted the imposition of a penalty in the form of an increased judgment it should have been done in that. The opinion affirming the judgment was filed October 28, 1890. Under the rules of the court no mandate can issue until after forty days, unless by a special order of the court, so that either party may have an opportunity to present objections to the judgment by way of a motion for a rehearing. Therefore, in the absence of an order to the contrary, the case is not remanded to the district court until the expiration of forty days, and no .execution can be issued on the judgment until after that time; in fact the judgment does not take effect until forty days from the time the opinion is filed, unless by a special order of the court. Yet we find that on the 17th day of November, 1890, Mr. Mace was served with summons in garnishment and four days thereafter he paid into the court, as he claims, the sum of $236.86 on the garnishment. On the 29th of the same month he claims to have been served
Overruled.