Chi., B. & Q. R. Co. v. Van Cleave

• Decision Date: 15 June 1897
• Citation: 52 Neb. 67,71 N.W. 971
• Parties: CHICAGO, B. & Q. R. CO. v. VAN CLEAVE.
• Court: Nebraska Supreme Court

52 Neb. 67

71 N.W. 971

CHICAGO, B. & Q. R. CO.

v.VAN CLEAVE.

Supreme Court of Nebraska.

June 15, 1897.

Syllabus by the Court.

1. By section 221, Code Civ. Proc., a garnishee is not required to appear and answer until he is tendered the same fees as the law allows a witness in the suit in which the garnishee proceedings are had.

2. A garnishee is not liable for a failure to appear and answer where the requisite amount of fees has not been tendered him.

3. A garnishee cannot be charged as the debtor of the defendant unless it appears affirmatively that at the time he was garnished a cause of action existed against him, and in favor of the defendant, for the recovery of a legal debt due, or to become due by the efflux of time. Edney v. Willis, 36 N. W. 300, 23 Neb. 56, followed.

Error to district court, Cass county; Chapman, Judge.

Proceeding in garnishment by Joseph Van Cleave against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.Chas. J. Greene, R. W. Breckenridge, J. W. Deweese, and Byron Clark, for plaintiff in error.

C. S. Polk, L. W. Billingsley, and R. J. Greene, for defendant in error.

NORVAL, J.

Joshua Van Cleave recovered a judgment against one R. G. Wilson, before a justice of the peace of Cass county, on February 4, 1890, for $56, including costs of suit; and an execution was issued on said judgment on the same day, which was returned unsatisfied for the want of property whereon to make a levy. Subsequently Van Cleave's attorney filed an affidavit in garnishment, under section 244, Code Civ. Proc.; and a summons in garnishment was served upon the Chicago, Burlington & Quincy Railroad Company, by leaving a certified copy thereof with J. W. Bowker, its station agent at Greenwood, to appear before the justice on February 12, 1890, at 9 o'clock a. m. The garnishee having failed to appear and answer, this action was instituted by Van Cleave against the railroad company, under section 225 of the Code; and from a judgment recovered against the defendant for $56 and costs, taxed at $50.78, it prosecutes error to this court.

A reversal is asked upon two grounds: First, that plaintiff never paid nor tendered to defendant, or its agent or officer, the fees which a garnishee is entitled to receive; second, it was not shown that the railroad company was indebted to the judgment debtor, Wilson, at the date of the service of the garnishee process.

As to the first point, it is undisputed that, when the garnishee summons was served upon Mr. Bowker, no fees were paid or tendered him. Subsequently, on February 12, 1890, on the day the garnishee was commanded by the writ to appear,--whether it was before or after the hour fixed in the summons for that purpose the witnesses do not agree,--the constable paid to Mr. Bowker, at the depot in Greenwood, as fees, the sum of one dollar, which amount on a...