Case v. Noyes
| Decision Date | 07 June 1888 |
| Parties | CASE v. NOYES. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Clatsop county.
(Syllabus by the Court.)
The remedy by garnishment is purely statutory, and to make it available the essential requisities of the statute must be complied with.
After a garnishee has been required to appear and answer, and before the day fixed for that purpose, or within a time to be specified in the order, the plaintiff may serve upon him written allegations and interrogatories, and without such allegations there is no foundation for any further proceedings against such garnishee.
The allegations provided by the Code were designed to enable the plaintiff to bring upon the record the cause of action which the original defendant had against the garnishee, and to which the plaintiff has become subrogated by virtue of the attachment.
The answers which the garnishee is required to make to the interrogatories, which must be served with the allegations were designed to further aid the plaintiff in bringing distinctly and clearly before the court the facts in relation to the property attached in the hands of the garnishee, and might be used in evidence upon the trial against the garnishee.
Proceedings against a garnishee upon an attachment or execution issued in an action at law is strictly a proceeding at law, and the mode of trial is the same as in an action at law. It is in ni sense equitable, and the mode of trial in a suit in equity cannot be resorted to.
Fulton Bros., for respondent.
C.H Page, Raleigh Stott, and C.B. Bellinger, for appellant.
It appears from the transcript in this case that on the 23d day of December, 1885, the respondent commenced an action in the circuit court of Clatsop county, Or., against the Sea-Side Packing Company, a private corporation, and William Kyle, on a promissory note payable to William Kyle, for $637.50, and by him indorsed to the plaintiff. The plaintiff on the same day caused a writ of attachment to be issued in said action and served the same on the appellant, Noyes, with notice that any money or property in his hands belonging to the packing company was attached, and requiring him to make a certificate of such money or property. The garnishee made return that he did not have in his possession any money or property of any kind belonging to the packing company. On the 31st day of December, 1885, the plaintiff filed his petition, showing the foregoing facts, and alleged that the statement and certificate made by Noyes were unsatisfactory to him; and alleging therein that he had in his possession at the time the writ was served $1,000, the property of the packing company, and asking that an order be made requiring Noyes to appear before the court, and be examined concerning the same. Based on said petition, the circuit judge made an order requiring Noyes to appear before the circuit court of the state of Oregon for the county of Clatsop on the 11th day of January, 1886, at the hour of 11 o'clock of said day, then and there to answer, under oath, concerning his indebtedness to the Sea-Side Packing Company, and concerning any goods, chattels, credits, or property he had in his possession or under his control, owing or belonging to it, on the said 5th day of January, 1886. On the 8th day of January, 1886, the plaintiff caused six interrogatories to be served on the garnishee, and on the 11th Noyes answered said interrogatories. On the same day, on motion of the plaintiff's attorney, it was ordered by the court that this cause be referred to C.R. Thompson, to take and report the testimony to the court at the next term. The time for taking the evidence was extended from time to time, till May 1, 1887. On the 5th day of October, 1887, by stipulation of the parties, the plaintiff was allowed to file a substituted reply to the answers of said garnishee, as a substitute for the original reply, which had been lost. This reply is to each and every answer of said garnishee, E.O. Noyes, to interrogatories numbered 1, 2, 3, 4, and 5: and it says said answers are not true, and it denies the same. The reply to the answer to interrogatory 6 is a narrative statement. The circuit judge made and filed a number of findings, and on the 13th day of September, 1887, in vacation, entered a final judgment against the garnishee for $500, from which he has appealed to this court.
The appellant, in his notice of appeal, assigns numerous errors only a part of which will be noticed. One assignment is: The interrogatories and allegations in said cause did not state or charge a cause of action. The proceeding by the process of garnishment is purely statutory, and to give it any validity the substantial and essential requirements must be complied with. After the allowance of the order, and before the garnishee shall be thereby required to appear, or within a time to be specified in the order, the plaintiff may serve upon such...
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