Educators Auto. Ins. Co. v. Jones

• Decision Date: 16 May 1967
• Docket Number: No. 41555,41555
• Citation: 428 P.2d 277
• Parties: EDUCATORS AUTOMOBILE INSURANCE COMPANY, Plaintiff in Error, v. M. L. JONES, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 277

428 P.2d 277

1967 OK 120

EDUCATORS AUTOMOBILE INSURANCE COMPANY, Plaintiff in Error, v. M. L. JONES, Defendant in Error.

No. 41555.

Supreme Court of Oklahoma.

May 16, 1967.

Syllabus by the Court

1. The fact that a summons in garnishment allows the garnishee twenty-nine days to answer, instead of 'not less than ten nor more than twenty days', as prescribed for clerk's orders in Tit. 12 O.S.1961, § 863, shows no cause for reversing the trial court's order overruling the garnishee's motion to quash said summons and objection to the court's jurisdiction, in the absence of a showing of prejudice therefrom.

2. On appeal, a 'Summons In Garnishment' requiring a garnishee to answer whether, or not, it is indebted to, or has in its possession, or under its control, any property, real or personal, belonging to the judgment debtor, may be considered as 'interrogatories' within the meaning of that term as it appears in Tit. 12 O.S.1961, § 863, and a sufficient compliance with said statute, where the garnishee answers it, and the record does not show any prejudice to it from the fact that said section, and § 864 of said Title, were not strictly complied with in the matter of issuing and serving 'interrogatories'.

3. Where, in garnishment proceedings under Tit. 12 O.S.1961, §§ 863 et seq., a notice of the garnisher's election to take issue with the garnishee's answer is filed later than is prescribed by § 1177 of said Title, this is not ground for reversal of a judgment against the garnishee, where no prejudice is shown to have resulted to it from the untimely filing.

4. It is the duty of the plaintiff in error to cause to be prepared and filed, in his appeal to the Supreme Court, a sufficient record of the trial court's proceedings to show cause for reversing its judgment.

Appeal from the District Court of Comanche County; Luther B. Eubanks, judge.

Appeal by garnishee from an adverse judgment in a garnishment proceedings. Affirmed.

Newcombe, Redman & Doolin, by Ralph W. Newcombe, Lawton, for plaintiff in error.

Nicklas, Parrish & Saenz, by W. F. Parrish, Jr., Lawton, for defendant in error.

BLACKBIRD, Justice.

This appeal involves a garnishment proceeding in aid of execution.

In April, 1964, defendant in error, as plaintiff, after a jury trial of the District Court's Cause No. 20113, and a verdict in his favor thereon, recovered a joint judgment against one Ed Mayes and his daughter, Margaret Mayes, in the sum of $3,330.63 and costs. In June thereafter execution was issued on said judgment and returned: 'Nothing found.'

Thereafter, on June 8, 1964, there was filed in said cause, on behalf of said plaintiff, or judgment creditor, an instrument entitled: 'AFFIDAVIT FOR GARNISHMENT AFTER JUDGMENT', in which it was stated, among other things, that '* * * the affiant believes that the Educators Automobile Insurance Company, a Corporation, has property, money, goods, chattels, credits and effects in its hands and under its custody and control belonging to the Defendant (Margaret Mayes), and that said Insurance Company, Inc., is indebted to * * * (said) Defendant.'

The next day, a 'SUMMONS IN GARNISHMENT' was issued, addressed to Educators Automobile Insurance Company, as garnishee of Margaret Mayes, requiring it on or before July 8, 1964, '* * * to answer, according to law, whether you are indebted to or have in your possession or under your control any property, real or personal, belonging to such Defendant--, * * *.'

Copies of this summons were served upon both Ed and Margaret Mayes (in a manner of which no specific complaint is now made) and upon the said named Insurance Company, appearing herein as plaintiff in error (but continually referred to as 'Garnishee'), by mailing a copy thereof to this State's 'INSURANCE DEPARTMENT'.

Thereafter, in August, 1964, the garnishee filed in said cause a pleading entitled: 'MOTION TO QUASH GARNISHMENT SUMMONS AND OBJECTION TO JURISDICTION AND VENUE OF THE COURT.'

Thereafter, on September 2, 1964, the court overruled the garnishee's motion and objection, its order reciting, among other things, that: '* * * the Garnishee is hereby given twenty (20) days from this date within which to file its answer to the Garnishment Summons in this cause.'

Thereafter, on September 10, 1964, the garnishee filed its answer 'specifically reserving its exception to the jurisdiction of the court * * *', alleging that it is a Texas corporation, and denying that it had 'in its possession or under its control any indebtedness or property within Comanche County, State of Oklahoma, owing or belonging to the Defendant, Margaret Mayes.'

On the following September 24th, Jones, the plaintiff, and defendant in error, but hereinafter referred to as 'garnisher', filed a motion for default judgment against the garnishee on the mistaken assumption that it had not filed its answer within the time allowed by the hereinbefore quoted court order.

After learning that the garnishee had filed the answer, the Garnisher, on October 12, 1964, filed in said cause an instrument entitled 'NOTICE', purporting to notify the garnishee that he elected to 'take issue on your answer * * *.' Copies of this notice were mailed to the Mayes' attorney (who had also represented the garnishee at the aforesaid hearing on its motion to quash and objection) and to the State's Insurance Commissioner, who, in turn, mailed copies thereof to offices of the garnishee in Texas and Arkansas.

More than five months thereafter, in March, 1965, there was filed in the proceedings a journal entry of a 'JUDGMENT IN GARNISHMENT' decreeing that the garnisher have and recover against the garnishee judgment in the same amount garnisher had previously recovered, as aforesaid, against the Mayes, with interest from the date of said previous judgment, and court costs of the original action, and of the garnishment proceedings, in a specified additional amount.

After the overruling of the garnishee's motion for a new trial, it perfected the present appeal by transcript.

Garnishee's 'Proposition I' for reversal is as follows:

'The trial court erred in overruling the Garnishee's motion to quash the garnishment summons and the objection to the jurisdiction and venue of the court for the reason that plaintiff did not follow any proper statutory procedure in the garnishment proceeding.'

Under this proposition, despite its above quoted wording, garnishee says, among other things, that 'it is apparent' that, in commencing the garnishment proceedings, the garnisher 'was attempting to proceed under Title 12, Oklahoma Statutes (1961), Section 863, et seq.'. Garnishee further calls our attention to the rule, however, that since garnishment is an extraordinary remedy prescribed by our statutes, said statutes must be substantially complied with in attempting to obtain that remedy. Among the defects garnishee cites in the subject garnishment proceedings are the garnisher's failure to prepare and serve upon it the interrogatories which § 864, Title 12, supra, provides 'shall be served on the garnishee at the time of', or within three days after, the service upon it of the court clerk's 'order' spoken of in § 863, supra.

Although garnishee's brief says, in one place, that the 'SUMMONS IN GARNISHMENT' in this case contains the same wording set forth in Tit. 12 O.S.1961, § 1173, it fails to demonstrate its insufficiency for use, and consideration, as the clerk's 'order' prescribed in § 863, supra. Garnishee also points out that the 'SUMMONS IN GARNISHMENT' allowed it almost Thirty days to file its answer in the proceedings, rather than the 'not less than ten nor more than twenty days' within which § 863 prescribes that a clerk's 'order' require a garnishee to answer 'all interrogatories that may be propounded by the judgment creditor * * *'. Garnishee makes no attempt to show, however, that its rights were prejudiced by having ten more days to answer than the maximum time prescribed by § 863, su...