Donnelly v. O'Connor

• Decision Date: 01 December 1875
• Citation: 22 Minn. 309
• Parties: J. G. DONNELLY <I>vs.</I> MARY O'CONNOR & another
• Court: Minnesota Supreme Court

Page 309

22 Minn. 309

J. G. DONNELLY vs. MARY O'CONNOR & another

Supreme Court of Minnesota.

December 1, 1875.

Appeal by defendant, garnishee, and claimant from a judgment of the court of common pleas of Ramsey county, Brill, J., presiding.

Davis, O'Brien & Wilson, for appellants.

O'Brien & Eller, for respondent.

GILFILLAN, C. J.

This action was commenced in a justice's court, and proceedings instituted in it against the Phœnix Insurance Company as garnishee, and, after a disclosure, J. C. McCarthy was, on his own application, admitted as a claimant and party to the garnishee proceedings. From the judgment of the justice's court discharging the garnishee the plaintiff appealed, on questions of law alone, to the court of common pleas of Ramsey county, where the judgment of the justice's court was reversed, and, on the disclosure made in the justice's court, judgment was rendered in favor of the plaintiff and against the garnishee. From this judgment the defendant, the garnishee, and the claimant appealed to this court.

Objections are taken here to the affidavit and summons upon which the garnishee proceedings were instituted; but as those objections were not raised in the justice's court, the parties must be held to have waived them.

The disclosure was made by an agent of the garnishee, who at first testified that the garnishee was not indebted to the defendant, but then went on and testified to facts which, beyond any question, showed such indebtedness. The facts in such cases, and not the conclusions of the garnishee, must govern.

The indebtedness grew out of a policy of insurance upon household furniture, wearing apparel, sewing machine and provisions, which had been destroyed by fire. The appellants claim that as the property was exempt, the money due upon the policy insuring it is also exempt; but the facts do not show that the property was exempt.

The disclosure made it appear that there was an endorsement on the policy, making it payable to McCarthy to the extent of his interest. Neither the character nor extent of such interest was proved, nor was it proved that at the time of serving the garnishee summons he had any interest. This was for him, and not for plaintiff, to show.

The disclosure was had on January 14, and when it was closed the garnishee moved that it be discharged. This was denied, after which McCarthy was, on his own application, admitted as a claimant. At his request the matter was continued to January 16, to allow...