Parmenter v. Childs

12 Iowa 22 | Iowa | 1861

Weight, J.

I. Under § 1006 of the Code of 1851, it is not necessary that a writ of attachment should issue in order to procure the writ of garnishment therein provided for. It was not intended to assimilate the proceedings instituted-by a sub-contractor to procure the benefit of the lien given by the succeeding section, to the attachment and garnishment process provided for in chapter 109 of the Code, to the extent of requiring a writ of attachment against the principal contractor.

II. Where the record stated that the garnishee was called, failed to appear, and was thereupon defaulted, held, that it was not necessary for the plaintiff to prepare and propound in advance the interrogatories contemplated by the statute. If when called he answers, it is then the duty of the party who seeks to charge him, to have the'interrogatories propounded and answers taken, either through a commissioner or otherwise, as the court may-direct. Where he fails to appear, however, the filing of the interrogatories with the clerk is not necessary to entitle the plaintiff to a default.

III. The proceedings by a sub-contractor to procure his lien and fix the liability of the owner of the property, under the mechanics lien law, (ch. 64, § 1006,) have the qualities of, and are to be conducted as an ordinary garnishment. And under this it is the duty of the owner, when called, to answer. If he fails to do so, and the record so states affirmatively, and that his default is entered, as it does in this case, we can not say that the court erred in refusing to set this aside, upon his unsupported affidavit that he had been at all times in court ready to answer. And the same is true, when the like showing is made in response to the motion of plaintiff for execution as contemplated by § 1870 of the Code.

IY. In moving to set aside the default, or in showing cause against the issuing of an execution, it is the duty of the owner or garnishee, not only to rebut the presumptions of indebtedness, but to show a sufficient excuse for his default. Negligence will not be tolerated in such cases any more than in ordinary actions. Fifield v. Wood, 9 Iowa 249.

Y. A particular and specific reference by the pleadings to the contract between the owner and principal contractor, is not necessary in an action by a sub-contractor, against his principal, as it is in cases commenced by the principal to enforce his lien.

These judgments are affirmed.