Evans v. Mohn
| Decision Date | 16 December 1880 |
| Citation | 7 N.W. 593,55 Iowa 302 |
| Parties | EVANS v. MOHN |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.
A DEFAULT and judgment was rendered against the defendant as garnishee, because he failed to appear when notified to do so, and answer touching his indebtedness to one Rosenaw, and the same having been set aside the plaintiff appeals.
AFFIRMED.
Sapp Lyman & Ament, for appellant.
G. A Holmes, for appellee.
The defendant was served with notice in February to appear on the 17th of May following, and answer as garnishee touching his indebtedness to the supposed debtor. He failed to do so, and a default and judgment was rendered against him. Thereupon he was notified to appear and show cause why execution should not issue. In response thereto, the defendant at the same term, and on the tenth day after the default was entered filed an affidavit showing an excuse for his failure to appear, and also stated under oath he was in no manner indebted to the supposed debtor. The sufficiency of the latter is not controverted, but it is said the excuse shown was not sufficient. The affidavit stated that after the service of notice on him he had "been busy building, and that on the 17th day of May he was busily engaged in moving into and furnishing a new hotel, * * * and that he was so engaged in the matter of his hotel business aforesaid, and the length of time the service of the notice of garnishment on him, that it had wholly and entirely escaped his memory."
That a default in an ordinary action will not be set aside, in cases where there has been negligence of the party or his attorney, is probably true. At least it will be so conceded.
In Parmenter v. Childs et al., 12 Iowa 22, where a default against a garnishee was under consideration it was said by WRIGHT, J., that: "Negligence will not be tolerated in such cases any more than in ordinary cases." That is to say, when negligence appears the same result must follow. But it was not determined that the same matters would constitute negligence in both classes of cases. There are differences between them which are entitled to consideration.
In one an indebtedness is claimed and alleged. This is well understood by the defendant when he is notified to appear and answer. In the other the garnishee is notified to appear and answer touching his indebtedness. When he does appear the plaintiff must propound interrogatories to him. The garnishee may demand that this be done. Instead of being charged as a...
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