Smith v. Dickson

58 Iowa 444 | Iowa | 1882

Seevers, J.

I. The amount in controversy being less than one hundred dollars, two questions have been certified upon which the opinion of the court is asked. The first is as follows:

“ Is a judgment rendered by a justice of the peace against a garnishee living in another county, upon such garnishee’s answers, a valid defense when plead by such garnishee in bar of an action brought against him by the judgment debtor for the same indebtedness, it being conceded that the original judgment in which the garnishment proceedings were had was valid, and obtained before said justice, who had jurisdiction of the subject-matter of said suit and of the judgment debtor?”

1. JUDGMENT: justice of the peace: garnishment. It is insisted that while it appears the judgment against the plaintiff was valid, and the justice had jurisdiction of the subject-matter and of the person of the defend-an^> yet as it affirmatively appears the plaintiff was a res}dent 0f Delaware county, the justice

of the peace of Clayton county did not have jurisdiction of the plaintiff in the garnishee proceeding, and therefore the judgment rendered therein against the defendant is void. There is no provision of the statute requiring notice of the garnishment proceeding to be served on the judgment debtor, so that the court may proceed in such cases against the garnishee without having jurisdiction of such debtor. He is not a necessary party to the action. Besides this it has been held the proceeding in garnishment is auxiliary and must be in the county where the judgment was rendered. Miller & Co. v. Mason & Co., 51 Iowa, 239. The foregoing question must be answered in the affirmative.

II. The second question is as follows:

“ Could said judgment debtor, as plaintiff in this action against said garnishee, plead in avoidance of the bar of said judgment against the garnishee that the indebtedness was for wages exempt from execution, and that said garnishee, to defeat plaintiff, procured himself to be garnished between the giving of the original notice and trial of this action in justice court, the plaintiff having no actual notice or knowledge of said garnishee judgment until pleaded as a defense in this action?”

2. — : — : procured in bad faith In Lieber v. The U. P. R. Co., 49 Iowa, 688, it was said to be an open question in this State, whether a garnishee was bound or privileged to set up the fact that the" money m his hands was exempt irom execution against the defendant in the judgment. We do not feel called upon to determine this question now.

The demurrer to the reply having been sustained, and the plaintiff allowing judgment to go against him, makes it apparent the foregoing question was drafted with reference to the facts pleaded in the reply, and that the latter should be taken into consideration in determining the question. This being so we have this case: the defendant, knowing the money in his hands was exempt from execution, procured himself to be summoned as garnishee, failed to plead the exemption or notify the plaintiff so that he might do so. This was in the nature of a fraud on the plaintiff. The judgment against the defendant was rendered by collusion or procurement on his part, and he should not, we think, be permitted to set it up as a shield or defense in this action. Even if it be conceded the rule is that a garnishee defends only for himself, the defense must be in good faith. But here no defense was interposed, and in bad faith, in fraud of the rights of the plaintiff, the defendant procured a judgment against himself.

The foregoing question must be answered in the affirmative. The result is that the judgment of the Circuit Court must be

Reversed.