Bower Bros. v. Hansen

• Decision Date: 13 December 1905
• Citation: 105 N.W. 394,129 Iowa 148
• Parties: BOWER BROS., Appellees, v. NIS HANSEN, Defendant, J. F. PETERSON, Garnishee, Appellant
• Court: Iowa Supreme Court

105 N.W. 394

129 Iowa 148

BOWER BROS., Appellees, v. NIS HANSEN, Defendant, J. F. PETERSON, Garnishee, Appellant

Supreme Court of Iowa, Des Moines

December 13, 1905

Appeal from Mills District Court.--HON. A. B. THORNNELL, Judge.

IN an action brought by plaintiff against defendant, Hansen, J. F Peterson was garnisheed as a supposed debtor of defendant and notified to appear at the next term of the district court in Mills county, to be begun and held April 14, 1903, and to answer such questions as should then and there be propounded to him. Court convened in that county April 14th, and the official reporter was on that day appointed a commissioner to take the answer of all garnishees ordered to appear at that term. The garnishee went to the county seat on the first day of the term and saw plaintiff's attorneys, and all parties agree that he was excused from appearing and answering on that day. For some reason he did not thereafter appear at any time, and on July 27, 1903, at a subsequent term of court, the garnishee was adjudged to be in default for want of appearance and answer; and on the 16th day of September, 1903, he was served with notice to appear and show cause why an execution should not issue against his property to satisfy plaintiff's judgment against Hansen. In response to this the garnishee appeared and filed a motion to set aside the default; his answer showing no liability of any kind to the judgment defendant. This motion was overruled and judgment was thereupon entered against the garnishee for the amount of plaintiff's judgment, with costs; and the garnishee appeals.

Reversed.

Organ & Pusey, for appellant.

Genung & Genung, for appellee.

OPINION

DEEMER, J.

The notice served upon the garnishee was defective, in that it did not require him to appear on the first day of the next term of court, and did not state that, if he failed to appear and answer, he would be liable to pay the judgment which plaintiff might obtain. Code, sec. 3935. Padden v. Moore, 58 Iowa 703, 12 N.W. 724.

Moreover according to all the evidence, the garnishee was excused from entering an appearance and answering on the first day of the term; and, as the trial court had appointed a commissioner to take answers of all garnishees cited to appear at the term, the garnishee, after being excused from answering on the first day, could not thereafter be held in default, without notice from the commissioner as...