37 Neb. 631 | Neb. | 1893
This is an original application for mandamus to require-the respondent, county judge of Madison county, to pay to the relators the amount of a judgment recovered by relators out of certain moneys paid into court in pursuance of garnishment proceedings and alleged to be properly applicable to the satisfaction of relators’ judgment. There was an order of reference and a report made by the referee in favor of the relators, and the case now comes up upon the relators’ motion for judgment upon the report and the-respondent’s exceptions to the report.
Upon December 1, 1888, suits were begun in the county court of Madison county by Kaminer, Prinz & Co., J. T. Robinson Notion Company, Erankenthal, Freudenthal & Co., W. V. Morse & Co., and Turner & Jay against Corn
“D. A. Holmes, one of the attorneys for the plaintiff above named, being first duly, sworn, deposes and says that he has good reason to believe, and does believe, that the-Norfolk National Bank has property of the defendant, to-wit, a stock of merchandise, in its custody in this county.
“D. A. Holmes.
“ Subscribed in my presence and sworn to before me this 1st day of December, 1888. George M. Beels,
“Justice of the Peace.”
These affidavits were all objected to as incompetent. The copies appearing in the bill of exceptions show no certificate of filing, but from some arguments in the brief it may be inferred that they were delivered to the officer with the order of attachment upon December 1. They were not filed in court until May 11, 1889. The officer returned the orders of attachment showing that upon December 1 he served the Norfolk National Bank as garnishee-in each of said cases. Upon December 3 the relators commenced the action resulting in the proceedings upon which this case is based; they also instituted attachment proceedings, filed an affidavit for garnishment against the Norfolk National Bank, R. E. Levy, and John R. Hays. Upon December 4 notice of garnishment was served. These proceedings are admitted to be regular in every respect. Upon January 14, 1889, John R. Hays filed a written answer, verified by his oath, a single paper bearing-the titles of all of the cases, and proceeding as follows:
“Comes now John R. Hays, and for answer in garnishment in the above entitled causes of action, and in each of them, shows the court as follows: That on December 1, 1888, the defendants Cornbleth & Pelzer made and executed a chattel mortgage to the Norfolk National Bank, of Norfolk,
Amount realized......................................$2,527 98
Expenses paid............................. $297 73'
Paid Norfolk National Bank........... 502 08
--- 799 81-
Now in affiant’s hands....................$1,728 17
“That there is now due and should be paid to R. E. Levy, on the mortgage hereinbefore mentioned, the sum of $500, with interest thereon at ten per cent from December 1, 1888, and the balance left after that is held subject to the order of the court; that the Norfolk National Bank, nor the officers thereof, nor R. E. Levy, know anything about the amounts realized, nor the expenses attending the same, and none of them have any money or property of any kind in their control or possession, and had not at the time
In- the course of time judgments were rendered against Cornbleth & Pelzer in each of the cases, and upon May 17 an order was made in each case directing Hays to pay into court the sum of $1,205.84, in accordance with 'his answer. Upon the same day in the Kaminer, Prinz & Co. case the following order was made:
“May 17, 1889, 1 P. M., this being the 12th day.of the May, 1889, term of this court, the attorneys for the plaintiff appeared and asked to have an order made requiring the garnishee in this action to pay into court the amount acknowledged by him to be in his hands belonging to defendant as per answer of garnishee on file.
“E. P. Wigton, attorney for Austrian, Wise & Co., Hansen Empire Fur Factory, and James Forrester & Co., appeared and in open Court objected to making order and distribution in the order of service for the reason that the affidavits for garnishment were not sufficient, and are void, arid asked to have the same distributed in the order of service in the cases of Austrian, Wise & Co., Hansen Empire Fur Factory, and James Forrester & Co.
“Attorney for plaintiff T>. A. Holmes filed affidavit, marked Exhibit ‘B/ attached to affidavit of garnishment marked Exhibit ‘A.’ (This affidavit shows that the affidavit in garnishment was handed to the officer before notice in garnishment was served.)
“After hearing the argument of counsel the objection is overruled, to which attorneys except, and it is ordered that
“First — Joseph Kaminer & Co., served December 1, 11:15 P. M.
“Second — J. T. Robinson Notion Co. and Frankenthal, Freudenthal & Co., served December 1 at 11:20 P. M.
“ Third — W. Y. Morse & Co. and Turner & Jay, served December 1, 1888, at 11:30 P. M.
“Fourth — W. Y. Morse & Co., served December 3, 1888, at 11:15 P. M.
“Fifth — James Forrester & Co., Hansen Empire Fur Factory, and Austrian, Wise & Co., served December 4, 1888, at 7 A. M.
“Witness my hand this 18th day of May, 1889.
“J. F. Duncan, •
“ County Judge’9
Upon May 18 the following order appears:
“ It appearing to the court that the above findings and orders, commencing with F. P. Wigton, attorney for Austrian, Wise & Co., etc., as found on page 168 and closing at middle of "page 181 this docket, were made and entered through a mistake and misunderstanding between the court and the parties to be affected thereby, by their attorneys, as to what the application made by said attorneys was, the said findings and orders are hereby set aside, vacated and held for naught. It is therefore ordered that John R. Hays, heretofore garnished in this action, pay to me the sum
“ J. F. Duncan,
“County Judge.”
The respondents offered in evidence a transcript of the county court records as follows:
“November 28, 1891, John R. TTays appeared as attorney for Joseph Kaminer & Co. in the above entitled case and filed motion,, supported by affidavit, to have the order and entry made in this case by this court on the 18th day of May, 1889, vacated and stricken out, so far as the same attempts and purports to reverse and set aside the order made by this court in this case on the 17th day of May, 1889. This vacation and correction is asked at this time on the ground of irregularity in obtaining the judgment or order now complained of.
“ It appears to the court from proof on file, that F. P. Wigton and Wigton & Whitham have been duly notified of this application and that they have accepted service of such notice. By agreement of the parties this case is continued to December 5, 1891, at 1 o’clock P. M.
“ Now on this 5th day of December, 1891, at 1 o’clock P. M., D. A. Holmes appeared for plaintiff Joseph Kaminer & Co., and in favor of said motion; F. P. Wigton appeared adversely and objected to the jurisdiction or fight of the court to entertain said motion, to hear any evidence in support thereof, or make the change prayed. Said F. P. Wigton filed no answer or demurrer to plaintiff’s demand, but made only the objection that the court could not, for want of jurisdiction, modify or in anywise change the order complained of. This objection was overruled, but the said Wigton made no exception to this ruling.
“The sworn testimony of J. F. Duncan and D. A. Holmes was then offered to the court, and the cause was submitted to me upon the pleadings and the evidence. In consideration whereof I find that the order made by J. F,
“ The court finds that the order made herein on the 18th day of May, 1889, was procured at the instigation and request of the parties who appeared in this cause adversely to the plaintiff, and that said order of May 18, 1889, was thus procured without the knowledge or consent of the plaintiff and in his absence. The court further finds that the statements contained in plaintiff’s motion are true, and that the motion should be allowed and the prayer thereof granted.
“It is therefore considered and adjudged that the docket in this case be, and the same hereby is, corrected by striking out and setting aside the entry made by this court in this case on the 18th day of May, 1889, so far as the last named entry purports to modify or vacate the judgment of this court entered in this case on the 17th day of May, 1889. It is further ordered that said judgment entered as aforesaid on the 17th day of May, 1889, shall stand in full force as the legal judgment of this court in this case, and for the distribution of the money mentioned to the several creditors named in said judgment. M. J. Moyer,
“County Judge.”
This offer was objected to as incompetent, immaterial, and because the court had no jurisdiction to make the order contained in the record. The objeclion was sustained by the referee.
It will be observed that the relators’ case was not begun
A question was raised as to the sufficiency of the affidavits in the cases begun December 1. The referee held that they were insufficient. It is said, first, that the affidavits are insufficient in form to authorize any garnishment proceedings because they do not show that the Norfolk National Bank is within the county where the actions were brought. Whether the omission of this averment renders the garnishment proceedings void, or whether it is a mere irregularity which may be waived by the garnishee’s appearing and answering, it is not necessary to here decide.
It is also urged that the garnishee in the actions of December 1 was the Norfolk National Bank, while the answer was made by Hays in his own behalf, and he was a mere volunteer. This question is also eliminated from the case by the conclusion reached upon the next question, which, we think, goes to the foundation of the whole proceedings.
A recurrence to the statement of facts will show that there is nothing in the records of the cases of December 1 showing that any affidavits for garnishment were filed in the county court until May 11, 1889, long after relators’ rights accrued, and after service upon the garnishee. On behalf of respondent it is argued that our statute only requires that such an affidavit should be made and not that
The next question which arises is as to the effect of the proceedings of May 17,1889. The record shows that the attorney for the relators on that day asked for an order of distribution in favor of the relators and certain others, excluding the plaintiffs in the case of December 1; that there was a hearing upon this motion and a finding of the order of priority among the different plaintiffs. Section 232 of the Code provides that where several attachments are executed upon the same property or the same persons are made garnishees, the court, on motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments. This power clearly confers upon the court authority to consider such report as in other cases and adjudicate priorities. Section 946, relating to justices of the peace, provides that in such cases the justice issuing the first order served, on the motion of any of the plaintiffs may determine the amounts and priorities. It is claimed by the relators that the proceedings had on May 17 were not within the power conferred by these sections, for the reason that the validity of the proceedings was involved. In other words, respondent urges that the statute should be construed so as to restrict it to cases where the validity of the different .orders is unquestioned. Such a construction practically defeats the statute, because in such cases there is usually no •occasion for any adversary proceedings. We think the object of these sections was to provide a speedy and convenient method of determining such conflicting claims. The record shows that these proceedings were had upon the motion of the relators and they were bound thereby. If these proceedings remain in force they constitute an adjudication
The order of May 18 purports to vacate the proceedings of the 17th. Was it' effectual for that purpose? The provisions regarding courts of records apply to county courts, while acting within their special jurisdiction, and such courts have the same powers as the district court to vacate judgments or orders during the term at which they were rendered. (Noakes v. Switzer, 12 Neb., 156; Volland v. Wilcox, 17 Id., 46.) An inspection of the calendar shows that May 18 was within the term as fixed by statute, and the order was therefore within the power of the court in those of the cases involving upwards of $200 ; and its effect was to vacate the proceedings of May 17 in those cases. There was one suit begun by W. Y. Morse & Co., in which less than $200 was claimed, and another by Turner & Jay, of the same character. As to these cases the county judge had only the jurisdiction of a justice of the peace, and, except in those cases especially provided by statute, a justice of the peace has no power to set aside a judgment or final order after its rendition. (Cox v. Tyler, 6 Neb., 297; Templin v. Snyder, 6 Id., 491; State, ex rel. Carter, v. King, 23 Id., 540.) The order of May 18 was a nullity in the two cases referred to, and as to those the order of May 17 remained in force.
Finally, what was the effect of the proceedings of December, 1891? This was meant to be a proceeding under section 602 of the Code. It was brought within the time allowed by law; there was an appearance on behalf of relators, and the order of May 18 was set aside and distribution ordered in accordance with the order of May 17. By section 610 of the Code the provisions of 602 are made applicable to county courts. It will be' observed that in the record of 1891 there was no express finding that the applicant had a “valid defense or cause of action.” This
Writ denied.