Davis v. Lilly

• Decision Date: 07 September 1906
• Citation: 1906 OK 98,87 P. 302,17 Okla. 579
• Parties: CHAS. E. DAVIS v. E. A. LILLY, et al.
• Court: Oklahoma Supreme Court

1906 OK 98

87 P. 302

17 Okla. 579

CHAS. E. DAVIS v. E. A. LILLY, et al.

Supreme Court of Oklahoma

Decided: September 7, 1906

Syllabus

¶0 1. PLEADING & PRACTICE--Answer of Garnishee--Conclusive, When The answer of a garnishee is conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer.

2. SAME--Where a garnishee has answered that he is not indebted to the defendant in any manner, and the plaintiff fails to give the statutory notice that he elects to take issue on such answer, is in error to render judgment against the garnishee.

STATEMENT OF FACTS

This was an action commenced in the district court of Custer county by E. A. Lilly against W. W. Smith, to recover the sum of $ 140, with interest and costs, alleged to be due on a promissory note executed on July 22, 1904. On the same day the plaintiff filed an affidavit in garnishment, alleging that he had good reason to believe that Charles E. Davis, the plaintiff in error, and W. P. Fowler, and C. O. Fowler, defendants in error, were indebted to said Smith, and asked that garnishment summons duly issue, which was accordingly done, and served upon each of the above parties The garnishees each filed an answer, under oath, stating that they were indebted to the defendant, W. W. Smith, in no manner or sum whatever. To these answers of the garnishees, reply was filed by E. A. Lilly, in which he stated the nature of the claim of the defendant, Smith, against each of the said garnishees.

Service was had upon the defendant, W. W. Smith, by publication. However, subsequently, and during the trial before the referee, the defendant appeared and filed an answer, in which he confessed judgment for the amount sued for, and stating that the garnishee, Davis, was indebted to him for more than the amount claimed in the plaintiff's petition.

When the cause came on for hearing, the court was of the opinion that the pleadings involved a matter of accounting, and the cause was sent, by agreement of the attorneys for all parties, to a referee, to hear the evidence, and make his findings of fact and conclusions of law separately, and report the same to the court. Accordingly the cause was sent to a referee, and when the case was called for trial before the referee, the plaintiff in error objected to the introduction of any testimony as against the garnishee, Charles E. Davis, for the reason that neither the said Charles E. Davis nor his attorneys were served with written notice that the plaintiff elected to take issue on the answer of the garnishee. This objection was overruled, to which ruling an exception was duly saved. The referee, after hearing all the evidence adduced at the trial, reported his findings of fact and conclusions of law thereon, and thereafter the court confirmed and approved the findings of fact and conclusions of law, and rendered the following judgment:

"The above cause came on for hearing on this 27th day of September, 1905, the same being a regular term day of said court, upon the motion of plaintiff to confirm the report of the referee, except as to the taxation of costs, and as to this the plaintiff moved that the costs involved in the garnishee proceedings be taxed to Chas. E. Davis, garnishee defendant, and upon the objections to the findings of fact and conclusions of law filed by Chas. E. Davis, and it appearing to the court that each of said parties have entered their general appearance in this cause, and are presented by counsel except W. P. Fowler, who is not present either in person or by attorney, but who has entered his general appearance herein, and the court having heard the report of the referee, confirms and adopts the findings of fact and the conclusions of law, and judgment is given accordingly, and said findings of fact and conclusions of law, and the report of said referee, are hereby referred to and made a part of this judgment.

"That the garnishee defendants, the First National Bank and W. P. Fowler are hereby discharged, and that all costs due them be paid by the plaintiff.

"It is therefore ordered and adjudged that the plaintiff, E. A. Lilly, have and recover of the defendant, W. W. Smith and Chas. E. Davis, garnishee defendant, the sum of $ 156.56 and the referee fee taxed at $ 115.30, and costs paid by E. A. Lilly to the amount or $ 30.85, and the district court costs, taxed at $ 28.00, making a total of three hundred and thirty and 71-100 dollars ($ 330.71), and that Geo. T. Webster, assignee of the defendant, W. W. Smith, and intervenor herein, have and recover of said Chas. E. Davis, garnishee defendant, the sum of four hundred seven and 04-100 dollars (407.04) and that execution issue therefor against said Chas. E. Davis, garnishee defendant, to all of which rulings of the court the garnishee defendant, Chas. E. Davis, excepts, and is hereby given ninety days within which to make and serve his case made for the supreme court, with ten days given to the defendant in which to suggest amendments thereto, same to be settled and signed upon five days' notice in writing by either party of the time and place of the settlement thereof."

The defendant, W. W. Smith, and the intervenor, George T. Webster, excepted to that part of the judgment in reference to the taxation of costs.

From this judgment the garnishee, Charles E. Davis, appeals and the defendant, W....