McGuire v. Pitts' Sons

42 Iowa 535 | Iowa | 1876

Seevers, Ch. J.

1 GARNISHMENT: assignement of judgement: notice I. As between Kenefick and plaintiff, there is no doubt that the judgment in the garnishment proceedings would protect the former against the latter- The judgment not being negotiable, and ^g plaintiff having failed to give Kenefick any notice of his ownership until after judgment against him, the plaintiff will not now be permitted to compel Kenefick to pay him, while the judgment in the garnishment proceeding remains in full force. McCoid v. Beatty, 12 Iowa, 219.

2.__:____ -- II. If, however, the court has the power (and that has not been questioned either in this or the court below) to protect the garnishee, then we think a different rule must prevail. When the garnishee process was served on Kenefick, the judgment was not the property of the supposed debtor Keenan, but had been assigned to and was the property of the plaintiff. The fact that the assignment had not been filed, or made matter of record in court, or that the garnishee had no notice of such assignment, makes no difference, because the plaintiff in the garnishment proceedings obtained no other or greater rights than Keenan in fact, not apparently, possessed. Drake on Attachments, Sec. 527; Wakefield v. Martin, 3 Mass., 558.

III. Section 3051 of the Code provides that the “ proceed-' ings by garnishment on execution shall be served as in ease of attachment.” Sec. 2979 provides, “ the notice must also require the garnishee to appear on the first day of the next term of the court, wherein the main cause is pending.” In this case the judgment was in the District Court on which the execution issued. These were the bases, and essential to the legality of the proceedings in garnishment. The notice to the garnishee informed him that the execution issued from the District Court, and also that he was required to appear before the Circuit Court, wherein said judgment was rendered. It is perfectly clear, under the section of the Code above quoted, that if this were an attachment and garnishment issuing out of the District Court, the Circuit Court could not, for the reason that the notice to the garnishee required him to appear in the latter court, obtain any jurisdiction over him or the subject matter. The proceeding would be a strange one indeed, if the main cause can be pending in one court, and the garnishment in another, for, if so, the garnishee could be compelled to answer in a justice’s court, in a case where the attachment was issued from the District or Circuit Court. It seems to us that the same rule must prevail where garnishment is effected on execution. It follows then that the judgment rendered in the Circuit Court, as against the plaintiff, at least, is absolutely void for the reason the court had no jurisdiction over either him or the subject matter. In cases where the principal defendant is not personally before the court, the garnishee must, for his own protection, inquire whether the court has jurisdiction over the defendant or himself. Drake on Attachment, Secs. 693, 695.

Affirmed.