Enderlin Farmers' Store Co. v. Witliff

• Decision Date: 31 January 1928
• Docket Number: No. 5452.,5452.
• Parties: ENDERLIN FARMERS' STORE CO. v. WITLIFF (MUELLER, Garnishee).
• Court: North Dakota Supreme Court

56 N.D. 380

217 N.W. 537

ENDERLIN FARMERS' STORE CO.

v.WITLIFF (MUELLER, Garnishee).

No. 5452.

Supreme Court of North Dakota.

Jan. 16, 1928.

Rehearing Denied Jan. 31, 1928.

Syllabus by the Court.

When it appears from the record that, upon a hearing in a default case in a garnishment proceeding, the plaintiff is entitled to the same judgment against the defendant and the garnishee, and the court orders judgment against both, and the written order for judgment prepared by the attorney for the plaintiff recites all the jurisdictional facts, but omits to order judgment against the garnishee, which written order, so prepared, is inadvertently signed by the judge, such omission is not a judicial mistake, and may be supplied by a subsequent order of the court entered nunc pro tunc.

Appeal from Ransom County Court; Leigh Monson, Judge, sitting in place of M. O. Thompson, Judge.

Action by the Enderlin Farmers' Store Company against Julius Witliff, in which Walter Mueller was garnished. From an adverse judgment, the garnishee appeals. Affirmed.J. V. Backlund, of Enderlin, for appellant.

Charles G. Bangert, of Enderlin, for respondent.

BURKE, J.

On the 11th day of August, 1921, summons, complaint, affidavit for garnishment, and garnishment summons, issued by the judge of the county court of Ransom county, were served upon the defendant, and said affidavit and garnishment summons were served upon the garnishee. At the time of making such service, $2, the statutory fee, was paid by the officer making the service to the garnishee. On the 28th day of August, 1925, the plaintiff's attorney filed an affidavit of no answer, and that the garnishee failed to make disclosure. On the 29th day of August, 1925, the court signed a written order, reciting that the summons and complaint affidavit of garnishment and garnishment summons were served upon the defendant, and that the affidavit of garnishment and garnishment summons were personally served upon the garnishee, and, it appearing that no answer or demurrer had been served, and that the garnishee had failed to make disclosure of any kind, although his garnishee fees were duly paid, that more than 20 days had elapsed since said service, and that both defendant and the garnishee are in default. After reciting the facts showing default on the part of both defendant and garnishee, the court ordered judgment against the defendant, failing to mention the garnishee, but, in entering judgment on the order, the clerk entered judgment against both defendant and garnishee. On the 24th day of September, 1927, the garnishee applied to the court for an order to the plaintiff to show cause why the judgment against the garnishee should not be vacated and set aside, which order was granted, and the 29th day of September was set for a hearing on such order. On the 27th day of September, 1927, on the application of the plaintiff, an ex parte order was issued amending the order for judgment nunc pro tunc. The amended order recited all the jurisdictional facts as stated in the original order, and continues as follows, viz.:

“And it further appearing that on the 29th day of August, 1925, upon the showing of the default of the defendant and the garnishee, the court did in fact order that judgment be entered against said defendant and said garnishee for the sum of $534.86, together with the costs and disbursements to be taxed, such judgment to be entered by the clerk, but that, through inadvertence and clerical oversight, the written order for judgment presented to and signed by the court did not order the entry of judgment against the garnishee, Walter Mueller;

And it further appearing that the clerk of the court did in fact enter judgment against both the defendant, Julius Witliff, and the garnishee, Walter Mueller, for said sum of $534.86, together with the costs then taxed and allowed in the sum of $36.90, making a total judgment of $561.76;

And it further appearing that said Walter Mueller, the garnishee herein, has not to that date applied to this court for permission to file a disclosure herein, nor has he served and filed herein an affidavit either admitting or denying liability in said matter, and that he is still in default, and has been in default at all times since the entry of the judgment on the 29th day of August, 1925:

Now,...