40 Neb. 549 | Neb. | 1894
This was an action in the district court of Thurston county by the plaintiffs in error against the defendant in error on an agreement in writing, of which the following is a copy:
“Bancroft, Nebraska, Jan. 7, 1890.
“Bought of Eugene Waldvogle 1,889 bushels of corn at 15 cents per bushel, ($283.35) two hundred and eighty-three and yw<7 dollars. Paid on same ($68.25) sixty-eight
“J. I). Atkins.”
And which was indorsed as follows:
“Pender, Neb., Eeb. 8, 1890.
“For value received, I hereby sell, assign, and set over all my right, title, and interest in the within due bill to Abbott & Curry. Eugene Waldvogle.”
“Pay to Bank of Pender. Abbott & Curry.”
The answer of the defendant admitted the execution of the agreement set out and alleged as a defense, the payment of the amount due thereon into court in obedience to the orders of the county judge in certain proceedings in which he had been summoned as garnishee of said Waldvogle. The reply was a general denial.
The first and only assignment of error necessary to discuss is that relating to the validity of the proceedings in garnishment. It is shown by the bill of exceptions that on the 6th day of February, 1890, one McHaffie filed with the county- judge a bill of particulars against Eugene Waldvogle and Hiram Forbes claiming $35.75 and interest for goods sold and delivered, and procured a summons to be issued, returnable February 13. He also at the same time filed a paper entitled an “affidavit for garnishment,” as follows:
“In the County Court of Thurston County, Nebraska.
“W. McHaffie, plaintiff, v. Hiram Forbes and Eugene .. Waldvogle, defendants.
“State of Nebraska,
Thurston County,
'
“W. McHaffie, being first duly sworn, says he is the plaintiff' in the above entitled action; that the plaintiff recovered a judgment therein against the said defendants on the 5th day of February, A. D. 1890; that there is now
“Subscribed in my presence and sworn to before me this ■6th day of February, A. D. 1890. J. Gr. Downs,
“County Judge."
Upon the filing of the foregoing affidavit a summons was issued for the defendant in error as garnishee, by which he was notified to appear on the 13th day of February and answer touching his indebtedness to the defendant therein. On the return day of the summons judgment was entered against the defendants by default. On the same day the defendant in error, having answered that he was indebted to Waldvogle in the sum of $100, was ordered to pay into court the amount of said judgment, to-wit, $47.22.
In this connection it should be stated that similar proceedings were had in a suit by one Bringe against Waldvogle and Forbes, in which the defendant in error was summoned as garnishee, but for the reason that the records are in all material respects identical, we have seen fit to •confine our examination to the case first mentioned.
The question presented is whether the order relied upon by the defendant is irregular merely and a sufficient justification of the payment when assailed in a collateral pro-needing, or whether it is void for want of jurisdiction. It is not contended that the proceeding is in any sense a compliance with the provisions for garnishment before judgment in aid of attachment; but it is said in the brief of counsel for the defendant in error that “ the affidavit for garnishment was in proper form and contains all of the averments required by section 244 of the Code.” By the section
Reversed and remanded.