Williams v. Williams

| Iowa | Oct 3, 1883

Rothrock, J.

— 1. The decision of the judge before whom the cause was tried was as follows: “Plaintiff on December 16, 1879, in the circuit court in and' for Poweshiek county, recovered judgment against Stephen "Williams for $2,028.66 and costs; general execution was issued thereon on December 19, 1879, and thereunder, at said time, the defendant herein, A. O. Williams, was duly garnished; the answer of the garnishee was taken during vacation and filed June 6, 1880; pleadings controverting such answers were filed by plaintiff on December 20, 1880, and on .April 21, 1881, such issues were tried at the April term of said court, April 25th, 1881, and submitted to be decided in vacation as of the last day of such term. At the time of the trial and submission, notice of the pendency of the garnishment proceeding had not been made upon the principal defendant, Stephen Williams. On May 21, 1881, there was duly served upon said Williams a notice in writing to the effect that the said proceedings were then pending in said court, and that the court would, as of the April term, 1881, enter judgment against the said A. G-. Williams as garnishee for the full amount of the judgment in favor of the plaintiff.

“At the time of the service of such notice the papers and arguments (written) of counsel were not yet delivered to the judge trying the cause, and were not so delivered until long afterwards.

“ The court finds that under Sec. 2975, Code, judgment cannot be rendered against the garnishee unless the principal defendant — the judgment debtor — has had ten days’ notice of the pendency of the proceedings in garnishment; that such service must be at least ten days previous to the hearing and submission of the issue — whether legal or of fact — of the liability of the garnishee; the object in requiring such notice being to enable such defendant (principal), if so advised, to take part in the determination of any question therein in which he may have an interest — the amount of the indebtedness of the garnishee, as well as the question of exemption.

“ The required notice was not served in this ease, and the adjudication of the question at issue between plaintiff and defendant is prohibited.

“Counsel for defendant insist that by reason of such want of notice to the judgment debtor the defendant shouldjbe discharged. The court finds that such question cannot be raised in this manner, and thinks the proper mode of so doing would be by motion to discharge garnishee for want of prosecution of cause, or delay in serving the required notice on the principal defendant, thus presenting a distinctive issue, which was not done in this case other than in argument.

“ It is therefore ordered that the trial and submission of this cause be set aside as premature, and that the cause stand continued for such action as either of the parties thereto may be advised to pursue.

“ The costs of trial had, depositions, witnesses, etc.- — all the evidence being reduced to writing and of file — it is ordered that same stand to abide the result of the suit, subject to such exceptions as may hereinafter appear or be shown. To all of which plaintiff excepts and defendant excepts.”

C. Hedges, Judge.

By. chapter 58 of the acts of the Eighteenth General Assembly, section 2975 of the Code, was amended as follows: “But no judgment shall be entered in any garnishment proceedings, condemning the property or debt in the hands of the garnishee, until the principal defendant shall have had ten days notice of such proceedings.” * * * *

We think the court correctly held that the notice required should be served ten days before the trial of the issue in the case, or, in case there is no issue, ten days before judgment is rendered against the garnishee. The object of the statute is to give the judgment defendant an opportunity to intervene in the proceedings and protect any right he may have. Counsel for appellee claim that the only question submitted to the court was, whether or not the garnishee was indebted to .the execution defendant, and that it was not sought in the proceeding to condemn the debt in the hands of the garnishee. This, we think, is a mistaken view of the statute. . But one trial is required to determine the rights of all the parties. In our opinion the court made the correct order in the premises..

The statute, in effect, positively requires that no judgment . shall be rendered against the garnishee and in favor of the execution plaintiff without notice to the execution defendant. This notice is essential to the jurisdiction of the court over the subject matter in controversy, which is the debt owing or property held by the garnishee. Now, if the.court had no jurisdiction of the subject matter for want of the notice required by law, and the garnishee failed either by pleading or motion to assert his right to be discharged, but submitted the cause without making that question of record, we think it was proper for the court to make the order which was made in this case. The result of the proceedings was a mistrial, owing to a defect of the parties necessary to give the court jurisdiction of the subject matter.

Affirmed.