Brocket Mercantile Co. v. Lemke

Decision Date06 February 1918
Citation39 N.D. 37,166 N.W. 800
PartiesBROCKET MERCANTILE CO. v. LEMKE (IMPERIAL ELEVATOR CO. et al., Garnishees; LEMKE et al., Interveners).
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Where one is served with garnishment process, and within the time required by law makes and serves on the person who brought such garnishment proceedings his affidavit or answer which fairly and fully sets forth the facts and circumstances relative to the property in his hands or under his control belonging to the defendant, and no issue is taken with such answer or affidavit of the garnishee within 30 days, the time specified by law in which persons maintaining such garnishment proceedings shall take issue with such garnishee's affidavit or answer, the facts and matters stated in such affidavit or garnishee answer are conclusive and must be taken as true.

In the case at bar there were two garnishees; the first being John W. Maher, the second being the Imperial Elevator Company. John W. Maher disclosed that he was in no manner indebted to the defendant. He further disclosed that he had security upon the crops grown upon certain lands sold by him to Fred Lemke, the defendant. Nowhere was there any admission of liability in such affidavit or answer, and there was a denial of such liability therein. No issue was taken on such affidavit or answer of John W. Maher within 30 days, and hence his statement of nonliability to the defendant must be taken as conclusive.

The Imperial Elevator Company disclosed in their affidavit or answer that the property in question, the wheat and barley which was delivered at their elevator, was supposed to be owned by John W. Maher and one Havener; that after such grain was delivered to the elevator, notice was served upon them by many persons, naming them, who claimed an interest or lien upon said grain, and claimed they owned the same in whole or in part. It appears from the record that there were sufficient liens filed against defendant's alleged half of such crop to more than equal the value thereof, which claims were filed prior to the time of the service of the garnishment process. Most or all of such liens were disclosed by the affidavit of the garnishee. No issue was taken on such affidavit, and the truth of the matters stated therein became conclusive. The plaintiff not having taken issue with such allegations, nor any steps to bring in any of the claimants by serving the order of the court upon them and thus proceeding in the way prescribed by law to compel such claimants to prove and establish the validity of their claims, it must be concluded as a matter of law that all of the allegations and statements in the garnishee affidavit or answer are true, and that the claimants referred to in such affidavit are the owners in whole or in part of half of such grain which is alleged as belonging to the defendant, and no issue having been taken so as to compel the claimants to establish the validity of their liens admitted to be on file at the time of the service of the garnishment summons and process, such liens must be held to be valid, and the defendant held to have no garnishable interest in such grain at the time of the service of the garnishment process.

It appearing by the testimony that John W. Maher sold to Fred Lemke certain land upon crop payment, said Lemke to pay for such land by delivering one-half of the crop raised thereon during each year of the life of the contract, and it appearing by the testimony that the defendant leased said land to one Havener for the year 1909, being the year in question, when the crops in dispute were raised upon said land, it was held, so far as the record disclosed, by reason of the leasing of such land as aforesaid, that at the time of the service of the garnishment process Fred Lemke had no garnishable interest in such crops.

Where garnishment process is served upon the garnishee the liability of the garnishee is determined by the facts and circumstances with reference to his indebtedness to the defendant, if any, at the time of the service of the garnishee summons. A change in events after the service of the garnishee summons upon the garnishee cannot increase his liability.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by the Brocket Mercantile Company against Fred Lemke, with garnishment against the Imperial Elevator Company and John W. Maher, and intervention by Henry Lemke and William Lemke. Judgment for defendant, the garnishees, and the interveners, and plaintiff appeals. Affirmed.Cowan & Adamson and H. S. Blood, all of Devils Lake, for appellant. W. M. Anderson and M. H. Brennan, both of Devils Lake, and D. V. Brennan and E. T. Burke, both of Bismarck, for respondents.

GRACE, J.

This is an action where the plaintiff sued the defendant, Fred Lemke, and at the same time garnisheed John W. Maher and the Imperial Elevator Company. The case came on for trial, and resulted in a judgment for the plaintiff in the sum of $1,709.95.

Fred Lemke had theretofore purchased from John W. Maher certain lands in Ramsey county, N. D., aggregating 960 acres, for the sum of $19,200. The contract with reference to such purchase was in writing, and was a purchase on the crop contract plan; that is, one-half of the crop raised upon the land each year, commencing with the year 1904, was to be turned over by Lemke to Maher, to be applied in reduction of the purchase price of said land, and in accordance with the terms of the contract. There was a stipulation in the contract “that until the delivery of one-half of the grain as aforesaid during each and every year of this contract, the legal title to, and ownership of, all of said grain raised during each and every year shall remain in the first party.”

Maher admits in his affidavit of foreclosure that this clause was intended as security for the purchase price of the land sold to Fred Lemke. Under the contract Fred Lemke also had the right to accelerate the payments of the purchase price. In the year 1909 there was raised upon the premises in question 9,085 bushels of wheat and 1,031 bushels and 30 pounds of barley, all of which grain was delivered to the elevator of the Imperial Elevator Company at Brocket, N. D., and storage tickets issued therefor in the name of John W. Maher.

The principal action was commenced on October 11, 1909, and the garnishee summons was served upon the garnishees on that date. Judgment was entered against Fred Lemke on December 17, 1912, and in September, 1914, about two years after the entry of such judgment, the plaintiff made a motion to procure an order directed against all persons mentioned in the affidavit of the Imperial Elevator Company, which is as follows:

“This action having been instituted by the plaintiff, Brocket Mercantile Company, a corporation, against Fred Lemke, defendant, and the Imperial Elevator Company, a corporation, and J. W. Maher, as garnishees, and the garnishee Imperial Elevator Company having made its disclosure that there has been deposited in its elevator at Brocket, N. D., 9,085 bushels of wheat, 1,031 bushels and 30 pounds of barley, for which storage tickets were deposited with the clerk of the district court, and that by the deposit of said storage tickets with the clerk of this court it delivers the grain so stored to the clerk of said district court to be held to abide the order of the district court in this action; and said garnishee having stated by its disclosure that it supposed that the same belonged to John W. Maher and F. W. Havener, but that since said grain was stored various disputes and differences have arisen, and that said grain was being claimed by various other parties, and that the following named persons have served notices of large and various claims to and against said grain: The Citizens' Bank of Brocket, John W. Maher, B. Kennedy, John Bartley, J. S. Robinson, S. E. Martin, Allen Leith, Roy Havener, F. W. Havener, and Fred Lemke; that by reason thereof this garnishee is unable to determine who of the said claimants are entitled to said grain and that it desires that the said grain be distributed as the various claimants may agree or the court may decide, and the garnishee Maher claiming to hold said property as security only; and it further appearing that judgment has been rendered against the defendant, Fred Lemke, for the full amount of plaintiff's claim in the sum of $1,709.95, but that no judgment was rendered against the garnishees or either of them, and that no proceedings were had in said garnishment and that no part of said judgment has been paid:

Now, therefore, said matter having been re-argued upon the application of the plaintiff, the Brocket Mercantile Company, it is hereby ordered that the following named persons: Citizens' Bank of Brocket, F. W. Havener, A. F. Moravetz, John W. Maher, B. Kennedy, John Bartley, J. S. Robinson, S. E. Martin, Allen Leith, and Roy Havener, be interpleaded as defendants to such garnishee action, and that notice thereof with a copy of said motion and a copy of this order be served upon each of the above-named persons, and that they and each of them have 30 days after service thereof to make answer in said garnishment proceeding, and that after determination of the rights of said claimants that the garnishee Imperial Elevator Company make delivery or payment according to the rights of the various named claimants.

Dated this 19th day of June, 1915.

C. W. Buttz, Judge.

This order was not served upon any of the persons mentioned in the affidavit of the Imperial Elevator Company. That Fred Lemke, one of the persons mentioned in the order of the court, intervened, as also did William Lemke, and B. W. Lemke, by permission of the court. The case was tried before a jury in the November, 1916, term of court of Ramsey county. At the trial, after plaintiff had rested his case, counsel for the defendant, garnishees and interveners, asked for a...

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5 cases
  • Brocket Mercantile Co. v. Lemke
    • United States
    • North Dakota Supreme Court
    • February 6, 1918
  • State Bank of New Salem v. Schultze
    • United States
    • North Dakota Supreme Court
    • May 21, 1924
    ... ... debtor had therein at the time of the garnishment. See ... Brocket Mercantile Co. v. Lemke, 39 N.D. 37, 166 ... N.W. 800; Hatcher v. Plumley, 38 N.D. 147, 164 N.W ... ...
  • Bank of Centerville v. Gelhaus
    • United States
    • South Dakota Supreme Court
    • May 21, 1932
    ...appellant cites Borgen v. Auguski, 51 S. D. 65, 212 N. W. 47;Bowman v. Larsen, 53 S. D. 246, 220 N. W. 489; and Brocket Mercantile Co. v. Lemke, 39 N. D. 37, 166 N. W. 800. But these cases do not support appellant's position. They merely hold that: “As against the garnishee, a garnishing ge......
  • Bronson v. Chambers
    • United States
    • North Dakota Supreme Court
    • November 17, 1924
    ...had therein at the time of the garnishment. See State Bank of New Salem v. Schultze (N. D.) 199 N. W. 138;Brocket Mercantile Co. v. Lemke, 39 N. D. 37, 166 N. W. 800;Hatcher v. Plumley, 38 N. D. 147, 164 N. W. 698, and cases cited; International Harvester Co. v. Hanson et al., 36 N. D. 78, ......
  • Request a trial to view additional results

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