Aultman, Miller & Co. v. Markley

• Decision Date: 20 June 1895
• Citation: 63 N.W. 1078,61 Minn. 404
• Court: Minnesota Supreme Court
• Parties: AULTMAN, MILLER & CO. v. MARKLEY ET AL. (ST. PAUL FIRE & MARINE INS. CO., GARNISHEE).

61 Minn. 404

63 N.W. 1078

AULTMAN, MILLER & CO.

v.MARKLEY ET AL. (ST. PAUL FIRE & MARINE INS. CO., GARNISHEE).

Supreme Court of Minnesota.

June 20, 1895.

(Syllabus by the Court.)

1. If the court has jurisdiction of the person of the defendant, the voluntary appearance and disclosure of the garnishee waives, as to him, the defects in the affidavit of garnishment.

2. In an action against two defendants, an affidavit of garnishment which states that the garnishee “is indebted to the said defendants in an amount exceeding the sum of fifty dollars” is sufficient to charge the garnishee for a debt due from him to one of the defendants alone.

Appeal from district court, Hennepin county; Henry G. Hicks, Judge.

Action by Aultman, Miller & Co. against W. D. Markley and others and the St. Paul Fire & Marine Insurance Company, garnishee. From an order discharging the garnishee, plaintiffs appeal. Reversed.

Harrison & Noyes, for appellants.

Kueffner, Fauntleroy & Searles, for respondent.

CANTY, J.

This is an appeal by plaintiff from an order discharging the garnishee. In September, 1892, plaintiff commenced an action against the defendants, W. D. and J. C. Markley, to recover a sum of money due from them on a joint contract. At the same time plaintiff filed an affidavit for garnishment, which, so far as here material, reads as follows: “That affiant believes that the St. Paul Fire & Marine Insurance Company has property, money, or effects in its hands, or under its control, belonging to W. D. Markley and J. C. Markley, the defendants in this action, exceeding fifty dollars in value, and that the said the St. Paul Fire & Marine Insurance Company is indebted to said defendants in an amount exceeding the sum of fifty dollars.” The garnishee summons was duly served on said insurance company on September 24, 1892; and on October 22, 1892, plaintiff's attorney made and filed an affidavit stating that neither of the defendants is a resident of this state, or within the same. On October 22, 1892,-the return day named in the garnishee summons,-the taking of the disclosure was by the court referred to the clerk; and pursuant thereto the garnishee duly appeared before the clerk of the court, and disclosed an indebtedness owing from the garnishee to the defendant W. D. Markley alone. The clerk filed his report of the disclosure October 29, 1892. Thereafter, on December 16, 1892, the defendants served their answer in the main action. Thereafter, on December 23, 1893, the defendants withdrew their answer, and consented that plaintiff have judgment for the amount claimed, which judgment was entered December 26, 1893. Nothing appears to have been done in the garnishment proceedings, after the filing of the report of the clerk as aforesaid, until March, 1894, when plaintiff moved the court to be allowed to introduce additional evidence, and that the garnishee be ordered to make a further disclosure. On the hearing the court so ordered. Thereupon the plaintiff and garnishee stipulated that certain facts recited should be taken as the evidence received on such further disclosure. Thereafter, in October, 1894, the plaintiff moved for judgment against the garnishee, and on the hearing the court below made an order discharging the garnishee. Counsel for the respondent garnishee attempt to justify this order on the grounds (1) that the affidavit for garnishment is defective, and gave the court no jurisdiction; and (2) that the debt disclosed is not one due the defendants jointly, but a debt due W. D. Markley alone. It would seem, from the memorandum of the judge who made the order, that these are the grounds on which he discharged the garnishee.

1. As to the first ground of objection to the garnishee's affidavit, it is urged that the affidavit is in the alternative. It states that the garnishee “has property, money, or effects in its hands, or under its control,” etc. On the authority of Prince v. Heenan, 5 Minn. 347 (Gil. 279), it is contended that the affidavit is void, and gave no jurisdiction to the court over the garnishee, and that the garnishee did not waive this want of jurisdiction by disclosing before the clerk. It will be observed that the last ground in this affidavit on which the garnishee is charged-that of indebtedness to defendants-is not in the alternative. But we are of the opinion that Prince v. Heenan should not be followed. If the defendants are nonresidents, or if personal service cannot be had on them in the main action, so that the action is merely one ad rem,-against the property or assets in the hands of the garnishee.-then the garnishee affidavit is the foundation of both the main action and the garnishment proceeding, and is jurisdictional. Jurisdiction of the rem cannot be obtained by proceedings in personam...