Hollingsworth v. Fitzgerald
| Decision Date | 08 October 1884 |
| Citation | 20 N.W. 836,16 Neb. 492 |
| Parties | SAMUEL W. HOLLINGSWORTH, PLAINTIFF IN ERROR, v. JOHN FITZGERALD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J.
AFFIRMED.
Allen W. Field, for plaintiff in error.
Marquett Deweese & Hall, for defendant in error.
On the 15th of September, 1879, the plaintiff in error commenced an action in the county court of Lancaster county against one Tyra Lines, and at the same time caused an order of attachment to issue against the property of said Lines. Under this order of attachment the plaintiff in said action caused garnishee process to be served on the defendant in error, who appeared in the county court and made answer as to his indebtedness to Lines. Subsequently the defendant in error recovered a judgment against Lines for the sum of $ 380.81, and an order was then made requiring the defendant in error to pay into court the sum of $ 570.40, that being the amount of indebtedness found due from the defendant in error to Lines. From this order no appeal was taken by the defendant in error. Afterwards the plaintiff in error brought suit in the county court against defendant in error on the judgment and order of the court in the garnishment proceedings. Judgment being rendered in his favor, the defendant in error appealed to the district court where a trial resulted in a similar judgment, which, upon review by this court, was reversed and remanded for a new trial. (See Fitzgerald v. Hollingsworth, 14 Neb. 188.) Upon a retrial in the district court, judgment was rendered in favor of defendant in error, and the plaintiff in error, who was plaintiff below, prosecutes error to this court.
Notwithstanding the fact that the pleadings are the same as at the time of the first trial and review, yet the issues of law now presented to this court are, and seem to have been upon the trial below, entirely different. In the former proceedings the plaintiff in error, by his evidence in the district court, and by his brief and argument in this court, seemed to rely entirely upon the fact of the actual indebtedness of the defendant in error to Lines, and upon that issue and the law applicable thereto the decision reported in 14 Neb. was made. In the latter proceeding an entirely new question is presented, and that is as to the conclusiveness of the judgment or order of the county court requiring the defendant in error to pay into court the money found due from him to Lines. If that judgment or order so long as it remains unreversed is conclusive as to the rights of the parties thereto, then the plaintiff in error is entitled to recover the amount thereof from the defendant in error.
By section 207 of the civil code it is provided in substance that, upon the plaintiff in an action filing an affidavit that he has reason to believe and does believe that some third person, naming him, has property of the defendant in his possession, if the officer cannot come at the property he shall leave with the garnishee a copy of the order of attachment with a written notice requiring him to appear in court and answer concerning the same.
Section 221 requires his answers to the questions to be propounded to him touching the property of every description and the credits of the defendant in his possession or under his control to be under oath, and that he shall disclose truly the amount owing by him to the defendant, etc.
Section 212 provides that the garnishee shall stand liable to the plaintiff in attachment for all property, moneys, and credits in his hands or due from him to the defendant from the time he is served with the written notice mentioned in section 207.
Section 224 provides that the court, upon finding the garnishee indebted to the defendant, may order the garnishee to pay the amount owing by him into court. But no provision is made by the statute for the enforcement of this order by execution, imprisonment for contempt, or otherwise. Nor is this order anywhere treated as a final judgment of the court making it.
It is insisted that the first clause of section 226, which provides that "Final judgment shall not be rendered against the garnishee, until the action against the defendant in attachment has been determined," is conclusive that the order provided for in section 224 is a judgment, and must be treated as such. We cannot so consider it. This provision evidently applies only to the provisions of section 225, which provides for an action in the ordinary form against a garnishee who has failed to appear and answer, or whose disclosures are not satisfactory to the plaintiff, or who fails to comply with the order of the court in delivering over the property in his possession, or paying into court the money in his hands, or the giving of the undertaking provided for in section 224. In the action provided for in this section judgment may be rendered against the garnishee in favor of the plaintiff, and this judgment "may be enforced as judgments in other cases." But no final judgment in this proceeding shall be rendered against the garnishee until the action against the defendant shall be determined in favor of the plaintiff.
It is next claimed by the plaintiff in error that the decision of this court in Wilson v. Burney, 8 Neb. 39, is decisive of this case and sustains the view taken by him. But upon a careful consideration of that case we fail to find it so. That decision is based upon section 244 et seq., of the civil code, which provides specially for proceedings by garnishment after judgment, and after a failure to collect upon execution. Plaintiff in error claims that the same rules must apply to these sections as to the law of garnishment upon attachment, and before judgment, and in support of his position cites section 245, which provides that after the service of summons, and the appearance of the parties, "like proceedings shall be had therein, and said garnishees shall be held liable in all respects, as in cases of garnishees before judgment." This provision is general, and no doubt refers to the methods to be adopted for the purposes of ascertaining the indebtedness and liability of the garnishee. But by section 249 it is provided that the order of the court shall be that the garnishee "pay over the amount found to be due from the garnishee to the defendant in execution, which amount shall be collected by execution, as in other cases, as near as may be, and such amount when paid or collected, shall be credited on the original judgment, and the garnishee shall be credited for the amount so paid or collected." By this section the order of the court is given all the force and effect of a judgment. The method of enforcing it as a judgment is provided, and we think it must be so treated.
In Schlueter v. Raymond Bros & Co., 7 Neb 281, it is held that this order when made is a...
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