67 Iowa 84 | Iowa | 1885
The defendants, E. Rothschild & Bros., brought an action againt one I. H. Wise, and caused the plaintiff, Bernhart Wise, to be garnished. The garnishee answered, admitting an indebtedness of $257.25. After-wards the garnishing plaintiffs took judgment against the garnishee for $987.75. The garnishee, the present plaintiff, brings this action to set aside the judgment on the ground that the garnishing plaintiffs “ fraudulently imposed upon the court and this plaintiff, by causing to be entered of record in said court a judgment for the sum of $987.75, and costs and interest, and in failing to comply with the statute
We have looked through the record, and we have to say that we do not discover anything which necessarily shows that such question was raised in the court below. But the counsel for the appellee state in argument that it was considered as raised, and was the question upon the determination of which the court rendered a decree in the plaintiff’s favor, and the counsel for the appellant seem to concede that this is so, and they now treat the question as being properly before us. We shall proceed to treat the question as the counsel treat it.
It appears to be agreed that an original notice was served upon the principal defendant, I. II. Wise, and that he appeared in the action. It appears, also, to be agreed that no specific notice of the garnishment proceedings was served upon him. The statute which the garnishee in that action, (plaintiff in this action,) relies upon is in these words: “ 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 proceeding.” The garnishment in this case was by attachment. The appellants’ position is that the original notice served upon the principal defendant in the action in which the writ is issued is sufficient, because the principal defendant, having thus been once brought in, must be presumed to have notice of whatever is done in the case, including the garnishment proceedings. But in our opinion
Affirmed.