Eagleson v. Rubin

Decision Date05 March 1909
Citation100 P. 765,16 Idaho 92
PartiesA. H. EAGLESON, G. G. EAGLESON, WILLIAM H. THOMPSON, and W. C. ANNETT, Appellants, v. O. RUBIN, Defendant, and IDAHO NATIONAL BANK and ALBERT O. RUBIN, Garnishees, Respondents
CourtIdaho Supreme Court


1. The right of attachment is purely of statutory regulation, and where the statute provides the procedure in such cases, the plaintiff is required to pursue such course in order to sustain his action against the garnishee.

2. Where a statute requires that the garnishee be served with the writ and notice of attachment, which fully advises him of the nature and character of the proceedings against him, and he is given an opportunity to be heard in court and contest the merits of the claim made against him, his rights are in no way abridged by reason of the fact that he was brought into court in response to a writ or notice different in form or name from an ordinary summons.

3. "Due process of law," as used in sec. 13, art. 1 of the constitution of this state, and also in the constitution of the United States, as applied to judicial proceedings means that every litigant shall have the right to have his cause tried and determined under the rules of procedure, the same as are applied to other similar cases; and when this is afforded to him, a defendant cannot claim that due process of law is not being observed.

4. The act of March 2, 1907 (Rev. Codes, secs. 4310a-4310n inclusive), makes full provision for notice to be given to the garnishee of the nature and character of the claim made against him, and gives him full opportunity to appear and contest such claim and have the merits tried as ordinary actions are tried.

5. Held, that the act of March 2, 1907 (Rev. Codes, secs 4310a-4310n, inclusive), is constitutional.

6. The default provided for in Rev. Codes, sec. 4310c, is the default for want of an answer and does not mean a default judgment. The judgment or liability of the garnishee cannot be entered until the case is proven upon the issues presented as any other cause must be proven.

7. The provisions of Rev. Codes, sec. 4310f, in relation to the time in which the garnishee must answer, relate to pleadings, and until default is entered for want of an answer the court possesses the power to permit answer to be made and to extend or enlarge the time in which the same may be made, and to open and set aside such default for good cause shown, as in other actions.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

An action in which attachment and garnishee process is issued. Judgment for defendant. Reversed.

Judgment reversed. Costs awarded to appellant.

Hugh E. McElroy, and Frank Martin, for Appellants.

The courts have frequently held that the garnishee may be in default for answer within the time provided; yet under such circumstances the garnishee is entitled to the relief usually allowed where a party is in default for pleading. (9 Ency. of Law, 830; Talladega Merc. Co. v. McDonald, 97 Ala. 508, 12 So. 34; Penn v. Pelan, 52 Iowa 535, 3 N.W. 540; McCallum v. Brandt, 48 Ga. 439; Proseus v. Mason, 12 La. 16.)

Sec. 3241, Idaho Codes, 1901, authorizes the court to enlarge the time for answer or demurrer. (See, also, Bowers v. Dickerson, 18 Cal. 420; Accock v. Halsey, 90 Cal. 220, 27 P. 193.)

The courts apply the ordinary rules in setting aside defaults against garnishees. (Bower v. Hansen, 129 Iowa 148, 105 N.W. 394; Travelers' Ins. Co. v. Wolcott, 144 Mich. 687, 108 N.W. 363.)

If the garnishment law of this state is unconstitutional and void, then we are still entitled to proceed against these garnishees under the law heretofore existing under which attachment notices attaching "all moneys, goods, credits, effects" belonging to the defendants were regularly served in this case.

The sufficiency of the process is purely a matter of law and not of fact. Everyone is presumed to know the law and the duties imposed by it when the attachment notice is served, regardless of the directions and statements of the writ. (Claflin, Mellen & Co. v. Iowa City, 12 Iowa 284.)

Wyman & Wyman, and Cavanah & Blake, for Respondents.

The garnishment proceedings in this case are illegal and void, because the act of 1907 (Rev. Codes, secs. 4310a-4310m, inclusive), under which they were instituted, is unconstitutional. This act is silent as to the service upon the garnishee of any notice, or copy of any exception or answer. Before a court can order judgment against a garnishee the law must provide a method of serving upon him a summons or process of the time of the hearing. The service of a writ of attachment is not sufficient to warrant a court in entering judgment against the garnishee in the original proceedings between the plaintiffs and the defendant.

"When a debt claimed to be due by one person to another is attached as provided for by sec. 4309, Rev. Stat., and such person has been examined under sec. 4310, and the existence of liability denied, the court or judge has no power to order a judgment against such alleged debtor upon such examination." (Lindenthal v. Burke, 2 Idaho 571, 21 P. 419; West Side Bank v. Pugsley, 47 N.Y. 368; Adamson v. Frasier, 40 Ore. 273, 66 P. 810, 67 P. 300.) "Nor shall any state deprive any person of life, liberty or property without due process of law." (U. S. Const., 14th Amendment; Idaho Const., sec. 13, art. 1.)

If the act of 1907 is constitutional, then the court had no power or jurisdiction to make the order of April 8th, extending the time for the plaintiffs to answer or to except to the answer of the Idaho National Bank. (Rev. Codes, sec. 4310f.)

In Alabama and Mississippi, where the statute required the answer of the garnishee to be traversed during the term, which is equivalent to the requirements of our statute that the answer be denied or excepted to within three days, the courts held that they cannot grant further time for this purpose after the term. (Cross v. Spillman, 93 Ala. 170, 9 So. 362; Brake v. Curd Sinton Mfg. Co., 102 Ala. 339, 14 So. 773; Lindsay v. Morris, 100 Ala. 546, 13 So. 619; Consumers' Ice Co. v. Cook Well Co., 71 Miss. 886, 16 So. 259.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.



The appellants, A. H. Eagleson, G. G. Eagleson, William H. Thompson and W. C. Annett, brought an action against O. Rubin in the district court of Ada county, Idaho. On April 1, 1908, the plaintiff caused a writ of attachment to issue out of said court in said cause, and served on the same date upon the Idaho National Bank, as garnishee, and on April 2d, upon Albert O. Rubin, garnishee, together with certain interrogatories. The notice served upon each of said garnishees being as follows:

"You will please take notice, that all moneys, goods, credits, effects, debts due or owing, shares of stock in any corporation or association, and all other personal property in your possession or under your control belonging to the defendants named in the writ, of which the annexed is a copy, or to either of them, are attached in pursuance of said writ, and you are hereby notified not to pay over or transfer the same to any one but myself.

"Please furnish statement.

"You are required to make full and true answers, under oath, to the following interrogatories and to file them in this cause, within five days after the service upon you of this notice. Should you fail so to do, the plaintiff may take judgment against you by default, or the court may, upon motion, compel you to answer by attachment."

Then follow certain interrogatories propounded to the garnishee and the notice is signed by the sheriff.

On the 4th day of April the Idaho National Bank made answer to the interrogatories propounded and denied any indebtedness to O Rubin, the defendant in the main action; or that the bank had any moneys or funds belonging to O. Rubin. On the 7th day of April the garnishee, Albert O. Rubin, made answer to the interrogatories and stated in effect that he had no money or property in his possession or under his control or in the Idaho National Bank belonging to the defendant, O. Rubin. On April 8th counsel for plaintiffs applied to the judge of the district court, in which such action was pending, for an order extending the time in which plaintiffs might except or answer the answer of the garnishees, Rubin and the Idaho National Bank. The judge made an order on April 8th extending the time to April 15th for plaintiffs to except or answer the answer of the garnishees, Rubin and the Idaho National Bank. On April 15th the plaintiffs filed their exceptions and answer to the answer of the bank and Albert O. Rubin. On April 21st the bank filed a motion to set aside the order made by the judge on April 8th extending the time of plaintiffs to April 15th to except to and answer the answer of the garnishees upon the ground that the court had no jurisdiction to make said order, as the time within which plaintiffs had to file their exceptions or answer had expired prior to the time such order was made; and upon the further ground that the act approved March 2, 1907, under which the proceedings in garnishment were had, was unconstitutional. On April 21st Albert O. Rubin filed a reply to the answer of the plaintiffs to his answer, and set forth therein practically the same matters as were alleged in the motion of the Idaho National Bank. On August 3d the court made an order sustaining the motion of the Idaho National Bank and dissolving the attachment proceedings served upon Rubin and the bank, and released the garnishees from any liability to the plaintiffs...

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