Brandon Sav. Bank v. Swanson

• Citation: 54 S.D. 95,222 N.W. 660
• Decision Date: 31 December 1928
• Docket Number: 6237
• Parties: BRANDON SAVINGS BANK, Plaintiff, v. C. T. SWANSON et al, Defendant.
• Court: Supreme Court of South Dakota

54 S.D. 95

222 N.W. 660

BRANDON SAVINGS BANK, Plaintiff,

v.

C. T. SWANSON et al, Defendant. South Dakota Supreme Court Original Proceeding #6237—Dismissed Waggoner & Stordahl, Sioux Falls, SD Attorneys for Plaintiff. Lyon, Bradford & Grigsby, Sioux Falls, SD Boyce, Warren & Fairbank, Sioux Falls, SD Attorneys for Defendants. Opinion Filed Dec 31, 1928

MORIARTY, C.

This proceeding comes before the court upon an alternative writ of prohibition issued by this court.

The petition for the writ shows the following relevant facts: The Brandon Savings Bank brought suit against one Chrisler upon a promissory note for $3,000. At the time the action was begun, the plaintiff caused a garnishee summons to be served upon the Farmer’s Savings Bank of Larchwood, Iowa. In response to said garnishment, the Larchwood bank served and filed its disclosure in which it set forth that it was not indebted to the principal defendant and had in its possession no money or property belonging to said principal defendant, except as further set forth.

The disclosure further set forth that the garnishee defendant had acted as clerk of a public sale, at which was sold certain property belonging to the defendant Chrisler and other property belonging jointly to said Chrisler and August Swanson and Charles Swanson, known as Swanson Bros., that said garnishee defendant had in its hands the sum of $1,962.32 as proceeds of the sale of property belonging to the defendant Chrisler and the sum of $1,839.50 as proceeds of property owned jointly by said Chrisler and Swanson Bros., but that said Swanson Bros. claim a lien superior to the garnishment upon all of said moneys belonging to Chrisler, by virtue of a mortgage covering the entire amount of said fund. And the garnishee defendant states that it is not advised as to the merits of the lien claimed by said Swanson Bros., and that it holds the proceeds of said sale subject to the order of the court.

No action was taken to bring in Swanson Bros. as parties to the action, under the provisions of section 2469, Revised Code of 1919, or otherwise. No issue was joined on the disclosure, no notice of bringing the matter on for trial was served upon the garnishee defendant, but, after the principal defendant’s time for answer had expired, the circuit court entered a default judgment against Chrisler in the sum of $3,430.53. After the entry of this judgment, but without notice to the garnishee bank or the claimants Swanson Bros., the court made findings that by consenting to the sale of the mortgaged property Swanson Bros. had waived any lien they may have had upon such property or the proceeds of its sale. And the court entered judgment against the garnishee bank for the full amount of the judgment against Chrisler.

Within 60 days after the entry of this judgment against the garnishee bank, Swanson Bros. applied to the court for leave to intervene in the action, and asked to have the judgment against the garnishee defendant vacated in order that they might have a trial of their claim to a lien on the fund. Immediately upon the presentation of this petition, the trial court issued an order requiring the Brandon bank to show cause why this petition for intervention should not be granted. Although this order was made returnable within 30 days, for some reason not disclosed by the record, the matter was not actually heard...