150 Minn. 502 | Minn. | 1921
In this action, brought in the district court of Waseca county, a garnishee summons was issued and the garnishee made disclosure in substance as follows:
In June, 1919, the defendant Peter Brecht made a sale of the garnishee’s farm to one Kent and was to receive a commission for his services. The garnishee gave Kent a contract for a deed and received a payment of $1,000. The contract called for an additional payment of $5,000 on March 1, 1920. Brecht’s commission was $1,400. Asked when the commission was payable, the garnishee answered: “After receiving my second payment of $5,000, March 1> 1920.” Plaintiff obtained a default judgment against the defendants and gave notice to the garnishee that upon his disclosure it would apply for judgment against him for $1,400. Before judgment was entered the garnishee was notified by the Farmers State Bank of Pemberton that his note to Peter Brecht for $1,400 was at the bank'and fell due March 4, 1920. On June 30, 1920, the garnishee made an affidavit purporting to be supplementary to his disclosure. The substance of his affidavit was that Brecht procured the note by fraud, trick and artifice, and then transferred it to the Pemberton bank, which is threatening to enforce payment, and that the note represented the identical indebtedness to Brecht which the garnishee had disclosed. The affidavit concluded with a statement that it was made to enable plaintiff to have the Pemberton bank brought in to disclose its right, if any, to the money due from him to Brecht. On July 6, 1920, the district judge entered an order making the Pemberton bank a party to the proceeding, and requiring it to file an answer therein within 20 days after the service of the order or be barred of its claim.
After the bank appeared and served a pleading in response to the order making it a party, there may be some question as to its right to ask for the vacation of the order. A motion to vacate an order should be seasonably made. McLaughlin v. City of Breckenridge, 122 Minn. 154, 141 N. W. 1134, 142 N. W. 134, and the trial court might have denied the motion on the ground suggested. But, passing that question, we think the order should be sustained on the merits.
If the bank had or claimed an interest in the garnished property antedating the garnishment, it was properly brought in as a party. Section 7869, G. S. 1913. The garnished property was the indebtedness of the garnishee to Brecht. The bank’s note represented the same debt.- The point is made that the garnishee is liable on the note and hence garnishment will not lie. To make this objection available the existence of a valid note must be presupposed. If the note is void, the original debt was not merged in it and is still subject to garnishment. The pleadings put in issue the existence and validity of the note. The issue can only be determined by a trial on the merits, to which the parties are entitled as a matter of right. Parke, Davis Co, v. McWhirter, supra, page 234, 185 N. W. 648. It is urged, however, that no one but the garnishee may question the existence and validity of the note. We are not of that opinion. If the garnishee discloses that there is a claimant of the debt he admittedly owes, he has the right to ask that the claimant be made a party. This is necessary for his own protection. Rood, Garnishment, § 336; Levy v. Miller, 38 Minn. 526, 38 N. W. 700, 8 Am. St. 691. The garnishee did not know of the existence of the note when he made disclosure, but called attention to it by his affidavit subsequently filed. The practice may have been irregular, Milliken v. Mannheimer, 49 Minn. 521, 52 N. W. 139, but the affidavit seems to have been treated "as a supplementary disclosure.
It is contended that nothing was certainly owing by the garnishee when the summons was served upon him, and, therefore, he should be discharged. As already noted, we cannot review an order refusing to discharge a garnishee. However, both parties have argued the question and we will briefly consider it. A debt is subject to garnishment before it has become payable, if its payment does not depend upon any contingency. Section 7863, G. S. 1913. The contingency asserted here is that nothing would be due from the garnishee, unless Kent paid $5,000 on March 1. We are unable to take that view of the garnishee’s testimony.’ As we read it, Brecht had earned his commission, but it was not payable until the second instalment of the purchase price of the farm fell due-