Chicago, Burlington & Quincy Railroad Company v. Van Cleave
| Decision Date | 15 June 1897 |
| Docket Number | 7316 |
| Citation | 71 N.W. 971,52 Neb. 67 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. JOSHUA VAN CLEAVE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Cass county. Tried below before CHAPMAN, J. Reversed.
REVERSED AND REMANDED.
Charles J. Greene, Ralph W. Breckenridge, J. W. Deweese, and Byron Clark, for plaintiff in error.
L. W Billingsley, R. J. Greene, and C. S. Polk, contra.
Joshua Van Cleave recovered a judgment against one R. G. Wilson before a justice of the peace in 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 of the Code of Civil Procedure, 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 or 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 garnishment 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, 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 $ 1, which amount on a subsequent day was returned to the justice by Mr. Bowker. The hearing on the garnishment proceedings was continued until February 20, 1890, but no notice of such continuance was ever given the railroad company or Mr. Bowker, nor did the garnishee appear before the justice on the return day, or at any other time, or make answer in...
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