First Nat. Bank of Cordell v. City Guaranty Bank of Hobart

• Decision Date: 12 November 1935
• Docket Number: Case Number: 25015
• Citation: 174 Okla. 545,51 P.2d 573,1935 OK 1105
• Court: Oklahoma Supreme Court
• Parties: FIRST NAT. BANK OF CORDELL v. CITY GUARANTY BANK OF HOBART et al.

1935 OK 1105

51 P.2d 573

174 Okla. 545

FIRST NAT. BANK OF CORDELL v. CITY GUARANTY BANK OF HOBART et al.

Case Number: 25015

Supreme Court of Oklahoma

Decided: November 12, 1935

Syllabus

¶0 1. GARNISHMENT--Garnishment in Aid of Execution After Return Unsatisfied-- Statutory Procedure for Reaching Property or Debts in Another Coup.

Sections 500, 501, and 502, Okla. Stats. 1931 (sees. 753, 754, 755, C. O. S. 1921), provide a separate and distinct method of procedure by garnishment after execution is returned unsatisfied, by which the judgment creditor may reach garnishable property of the judgment debtor, or debts owing to him, when held in the hands of another in any county where the same may be found or held, and the district court of the county where the judgment was rendered acquires jurisdiction to reach such property, debts, or assets in any other county and to apply the same towards the satisfaction of the judgment, provided the judgment creditor proceeds in conformity with the requirements of those sections in order to afford the court jurisdiction in the matter.

2. SAME--Garnishment After Judgment in Nature of Execution and Issuable Only From Court Rendering judgment.

Though a garnishment is not an execution, garnishment after execution is practically an equitable execution brought for the purpose of reaching nonleviable assets. It issues upon the judgment in somewhat the same manner as an execution and in immediate aid or in lieu thereof. Garnishment after judgment is so much in the nature of an execution that it comes within the provisions of the statute providing that execution shall only be issued from the court in which the judgment is rendered.

3. SAME--Rights Under Garnishment in Aid of Execution not Nullified by Issuance of Alias Execution.

An execution issued and returned unsatisfied, in good faith, is sufficient to warrant, under sections 500, 501, 502, supra, garnishment proceedings in aid of execution, and the issuance of a second or alias execution on the judgment does not take away the rights under the garnishment or nullify the same.

4. SAME--General Appearance of Garnishee at Trial of Issue Taken on His Answer as Waiver of Objection to Jurisdiction.

A general appearance by the garnishee at the trial of the issue taken on his answer waives his right to object to the jurisdiction of the court over him.

5. STIPULATIONS--Stipulations not Controlling Upon Court in Matter of Law.

A stipulation between the parties or their counsel cannot control the action of the court in a matter of law, a though they may stipulate respecting facts.

6. GARNISHMENT--Garnishment in Aid of Execution--When Lien Attaches.

Under the garnishment statutes above mentioned, the garnishment lien attaches when file order to answer is served on the garnishee, and thereafter the garnishee stands liable to the plaintiff or judgment creditor.

7. APPEAL AND ERROR--Insufficiency of Evidence--Failure to Object at Trial.

Where no demurrer or other objection to the evidence was interposed at the trial, such objections are waived and not subject to review on appeal.

Appeal from District Court, Kiowa County; E. L. Mitchell, Judge.

Action by the City Guaranty Bank of Hobart against one W. C. Scarberry, in which garnishment proceedings after default judgment against defendant were instituted against the First National Bank of Cordell, as garnishee. From judgment against garnishee in favor of plaintiff, garnishee appeals. Affirmed.

A. M. Beets, William J. Zeman, and Jones & Wesner, for plaintiff in error.

Carder & Carder, for defendant in error.

PER CURIAM.

¶1 The parties will be referred to herein as they appeared in the trial court.

¶2 The facts in this case are few and simple and the decisive question involved is one of law rather than fact. It appears from the record that, in August, 1927, the plaintiff, City Guaranty Bank of Hobart, commenced this action in the district court of Kiowa county against one W. C. Scarberry, defendant, to recover on certain promissory notes. Personal service of summons was made on the defendant in Kiowa county. The defendant failed to appear or answer, and thereafter, on November 2, 1928, a default judgment was rendered against him. It appears that the defendant subsequently moved and resided in Washita county. An execution issued on September 23, 1929, by the court clerk of Kiowa county to the sheriff of Washita county, was returned with the notation thereon showing no property found. Thereafter, on November 26, 1929, an affidavit for garnishment in aid of execution after judgment was filed by the judgment creditor, plaintiff, in Kiowa county and, on the same day, the court clerk duly issued an order thereon directed to the First National Bank of Cordell, in Washita county, the garnishee herein, requiring the garnishee to file with said court clerk, on or before the 10th day of December, 1929, full and true answers to all interrogatories attached thereto, propounded by the judgment creditor, and said order and interrogatories were duly served on the garnishee in Washita county on November 27, 1929, at 3:45 p. m. In reply, on December 2, 1929, the garnishee filed its answers, duly verified, to all the interrogatories, with the court clerk of Kiowa county.

¶3 It appears from the interrogatories and the answers thereto that the garnishee acted as the clerk of a public sale held by the defendant in Washita county on November 27, 1929, being the same day on which the order and interrogatories mentioned were served on the garnishee. In its answers, the garnishee admits that it "paid to C. R. Logsdon, landlord, on order of Scarberry, $ 500." The answer of the garnishee does not show the date or time of day on which this payment was made. The plaintiff gave due notice to the garnishee that it took issue on the answers of the garnishee on account of the $ 500 payment, and this controversy is over the payment so made.

¶4 After some time, the matter finally came on for hearing by the court. The garnishee, by its president and counsel, appeared at the hearing in Kiowa county. By agreement of counsel for the parties, the evidence offered at the hearing was limited to the deposition given by the president of the garnishee bank, who testified that the payment of $ 500 was made by the garnishee to Logsdon on a check, offered in evidence, for $ 500, signed by the defendant, Scarberry, with the words, "sale account," noted thereon, and bearing date of November 29, 1929, which was two days after the order and interrogatories were served on the garnishee on the day of sale. It was stipulated by counsel at the hearing that, by the giving of said deposition, the garnishee shall not be held to have waived any of its rights to object or except to the jurisdiction of the court in the matter of the right of the court to treat the proceeding as a garnishment action. From the evidence at the hearing, the court found that the garnishee bank, after being served with the garnishee order herein, paid out the sum of $ 500 to the defendant, and that the answer filed herein by the garnishee is incorrect for the reason that it does not disclose the date of said payment, and by reason thereof the court found and fixed the liability of the garnishee at $ 500, together with interest and costs, for which judgment was entered. As a part of the judgment, the court ordered the garnishee to pay the sum aforesaid to the court clerk of Kiowa county to abide the further order of the court. From the judgment, the garnishee appeals.

¶5 The validity of the judgment against the defendant and of the execution issued thereon and returned unsatisfied, appears to be conceded, at least, not questioned.

¶6 The garnishee presents three assignments of error: The first and principal error assigned challenges the jurisdiction of the district, court. The garnishee contends that there is no law authorizing the district court of the county in which the judgment was rendered against the defendant to order and require the garnishee, resident of another county, to file answers to the interrogatories by the judgment creditor, or to appear for trial of the issue taken on the answers, in the county where such judgment was rendered.

¶7 The garnishment proceedings herein were instituted and are based upon the following provisions of the statutes'

¶8 Section 500, O. S. 1981 (section 753, C. O. S. 1921), provides:

"When an execution shall have been returned unsatisfied, the judgment creditor may the an affidavit of himself, his agent or attorney, in the office of the clerk, setting forth that he has good reasons to, and does, believe that any person or corporation, to bo named, has property of the judgment debtor, or is indebted to him, and thereupon the clerk shall issue an order, requiring such person or corporation to answer, on or before a day to be named in the order, not less than ten nor more than twenty days from the date of issuing the same, all interrogatories that may be propounded by the judgment creditor, concerning such indebtedness or property."

¶9 Section 501, O. S. 1931 (section 754, C. O. S. 1921), provides:

"The judgment creditor, or his attorney, shall prepare interrogatories concerning such indebtedness or property, a copy of which shall be served on the garnishee at the time of the service of the order, or within three days thereafter. And the garnishee shall, on or before the day required in the order, file with the clerk full and true answers to all such interrogatories, verified by his affidavit."

¶10 Section 502, O. S. 1931 (section 755, C. O. S. 192-1), provides:

"All subsequent proceedings against the garnishee shall be the same as in cases of attachment, so far as applicable."

¶11 The statutes above set out are applicable to the case at bar. They authorize garnishment in aid of execution only after execution has been returned unsatisfied. They are found in and are a part of the chapter on "Executions and other proceedings to enforce...