Thomas v. Hoffman

62 Iowa 125 | Iowa | 1883

Adams, J.

Where a commissioner is appointed to take the answer of a garnishee, and the court does not fix the time and place for the answer to be taken, it is to be inferred that the intention of the court was that the commissioner should fix the time and place. This the commissioner may do by serving a notice on the garnishee of the time and place at which he is to answer. We know of no other way in which the time and place could properly be fixed by the commissioner. EEe could not do it by a mere mental determination, nor by making a record of the same in his office, or elsewhere. A record made at a time and place not known to the law is not binding upon any one.

No notice having been served upon the garnishee in these cases of any time or place fixed by the commissioner for taking bis answers, be was not, we think, in fault for not giving bis answers.

Tbe commissioner was guilty of an irregularity, therefore, in reporting to tbe court that tbe garnishee bad “failed to appear.” While it was true, in one sense, perhaps, that tbe garnishee bad failed to appear, it was not true in any proper sense, and not true in tbe sense in which the court probably understood it. We do not know that it was the intention to mislead the court, but we have no doubt that tbe report did mislead it. This irregularity was consummated by tbe ap-piellees by moving for judgment against tbe garnishee for failure to appear and answer. We are clear that tbe judgments in these cases ought not to stand. Code, § 3154.

We have reached this conclusion independent of tbe fact that tbe garnishee answered to tbe officer. ITis answers were stricken from the files, and perhaps properly, because the officer was not directed to take his answers.

Tbe right to injunctions to restrain the executions depended upon the validity of tbe judgments. The injunction cases were very properly submitted with tbe cases in which the judgments were obtained. The conclusion which we have reached necessarily disposes of the injunction cases in the appellant's favor.

What we have said thus far pertains to tbe merits of the cases. Tbe appellees, however, urge some technical objections which demand a brief consideration.

It is insisted that the errors assigned are not sufficiently specific.

One of tbe errors assigned is that the court erred in overruling tbe motion of the garnishee to vacate tbe judgment. The motion was based upon the alleged ground that the judgment was obtained through irregularity. No other ground is relied upon. It is true that the garnishee specifies more than one thing in which the alleged irregularity consisted; yet as he relied upon one statutory ground, we think that it was sufficient to assign as error that the court erred in overruling the motion.

It is further insisted that the motion should have been filed at the time at which judgment was rendered; and in support of the position the appellees cite Scamahorn v. Scott et al., 42 Iowa, 529. But in that case the garnishee had failed to obey the order of court. In the case at bar the alleged failure was that the garnishee did not appear before the commissioner. But, as we have seen, that was in no proper sense a failure, no time or place for his appearance having been fixed so that he could appear. In all the'actions the judgment of the district court must be

Reversed.