Burnham v. Doolittle & Gordon

• Decision Date: 08 February 1883
• Citation: 15 N.W. 606,14 Neb. 214
• Parties: SILAS H. BURNHAM, PLAINTIFF IN ERROR, v. DOOLITTLE & GORDON, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 606

14 Neb. 214

SILAS H. BURNHAM, PLAINTIFF IN ERROR, v. DOOLITTLE & GORDON, DEFENDANTS IN ERROR

Supreme Court of Nebraska

February 8, 1883

ERROR to the district court for Lancaster county.Tried below before POUND, J.

AFFIRMED.

Wales Frank Severance, for plaintiff in error.

1.Summons should have been quashed.Humphrey v Candee,2 Cow. 509.Burgess v. Stilt, 12 How. Pr. 401.

2.The equity of redemption cannot be reached by garnishment.Drake on Attachment, secs. 560, 561.Williams v. Railroad,36 Me. 201.Hassie v. God With Us, 35 Cal. 378.

Samuel J. Tuttle, for defendant in error, cited: Finnell v Burt, 2 Handy, 207.Casly v. Fenstemaker,14 Ohio St. 457.Faulkner v. Meyers,6 Neb. 418.Wheeler v. Newbold, 16 N.Y. 392.

OPINION

LAKE CH. J.

This petition in error presents two questions.First.Was the motion to quash the summons in garnishment properly overruled?Second.Was the plaintiff in error rightly held as garnishee?

The first of these questions might well be disposed of by applying a rule of practice that a voluntary appearance is a waiver of all defects in the original process.Crowell v. Galloway, 3 Neb. 215.Kane v. The People, 4 Neb. 509.Or it might be disposed of under the rule of the statute, that: "No proceedings against such garnishee or garnishees shall be quashed, or such garnishee or garnishees discharged, by reason of any informality or irregularity merely of the affidavit, or summons provided for in this article."Sec. 247 Comp. Statutes, 563.But we prefer to place our decision upon the ground that the summons was regularly issued, and sufficient to give the court jurisdiction of the person of the garnishee, even under the most technical rule of procedure.

The objection to the summons was simply that the "affidavit on which the procedure is based is insufficient in not establishing that the garnishee has property of, or is indebted to defendant; and that" * * * "it is not entitled in any court, proceeding, or cause."

This objection is based in part upon the supposition that, to properly institute a proceeding of this kind, the affidavit must necessarily show that the person to be summoned has property of the judgment debtor in his possession or under his control, or is indebted to him, and that a statement of mere belief, without more, will not answer.Referring to the statute, however, we find that nothing further is required to be stated than that the judgment creditor "has good reason to and does believe that any person or corporation (naming them) have property of and are indebted to the judgment debtor."Upon the filing of an affidavit, stating such belief, it is provided that the proper officer "shall issue a summons as in other cases, requiring such person or corporation to appear in court and answer such interrogatories as shall be propounded to him, it, or them, touching the goods, chattels, rights, and credits of the said judgment debtor in his, its, or their possession, or control."Sec. 244, Comp. Statutes, 562.Mere belief, therefore, is all that the statute contemplates, and consequently all that courts have the right to exact in affidavits of this kind.If it had been intended that the facts and circumstances inducing such belief should be given, and their sufficiency determined by the court, it is but reasonable to suppose that language altogether different from this would have been employed.

The other point of this objection, viz., that the body of the affidavit was without a title, is merely technical.In the affidavit it is clearly averred that it was a transcript of the record of the writ of Doolittle & Gordon v. W. Sanford Gee, that had been filed in the district court, and it was against "the property of the said W. Sanford Gee" that the garnishment proceeding was directed.Besides, the affidavit was endorsed, "Doolittle & Gordon against W. Sanford Gee," and this is also the endorsement of the summons served upon the person garnished.There could not have been, therefore, any possible doubt as to the case in which it was intended to use the affidavit, nor as to the persons sought to have affected by it.There was neither uncertainty nor ambiguity in any particular, and we are aware of no purpose that would have been better served by prefixing the title of the cause to the body of the affidavit.

The only remaining question is whether the judgment debtor's equity of redemption, or interest in the two promissory notes, could be reached and held by the process of garnishment?It must be conceded that according to most of the cases bearing upon this question, it could not.1 Wait's Actions and Defences, 422, 423.Following this general current of authorities, we held in Peckingbaugh v. Quillin, 12 Neb. 586, 12 N.W. 104, that it is only...