Mason v. Miller
| Decision Date | 19 October 1915 |
| Docket Number | 5713. |
| Citation | 153 P. 187,54 Okla. 46,1915 OK 835 |
| Parties | MASON ET AL. v. MILLER ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 14, 1915.
Syllabus by the Court.
Where garnishment proceedings are commenced in aid of a judgment after execution thereon returned unsatisfied, and such proceedings are instituted under section 6028, Comp. Laws 1909 (section 5211, Rev. Laws 1910), no bond is required to be given.
After the answers to the interrogatories have been verified by affidavit and filed with the clerk of the court, all subsequent proceedings against the garnishee shall be the same as in cases of attachment as far as applicable.
Where a garnishee answers that it has certain stocks and dividends in its hands belonging to one of the defendants, but that it holds the same under a lien to secure an indebtedness greater than the value of stocks and dividends held by it, and the plaintiff failed to give the statutory notice under section 5718, Comp. Laws 1909 (section 4827, Rev. Laws 1910) electing to take issue on the answer, the conclusiveness of the facts therein stated cannot be questioned in any subsequent hearing in such garnishment proceedings.
The defendant, under section 5720, Comp. Laws 1909 (section 4831, Rev. Laws 1910) may, in all cases, defend the proceeding against any garnishee upon any ground upon which a garnishee might defend the same, and defendant may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests.
Commissioners' Opinion, Division No. 3. Error from District Court, Carter County; S. H. Russell, Judge.
Action by Mabel Miller and others against I. R. Mason and others. Judgment for plaintiffs, and certain defendants bring error. Reversed.
J. A Bass and I. R. Mason, both of Ardmore, for plaintiffs in error.
On December 24, 1910, Mabel Miller procured judgment against I R. Mason and James A. Cotner in the district court of Carter county, Okl., in the sum of $933.03, and on November 17, 1911, an execution was issued out of said court, which was returned unsatisfied, and afterwards a writ of garnishment was issued and served upon the Ardmore State Bank requiring it to answer certain interrogatories submitted by November 27, 1911. Upon agreement between the plaintiff and garnishee, answer was not filed until the 27th day of February, 1912. This answer alleged that the garnishee had ten shares of stock in its possession, in the name of I. R. Mason, and dividends thereon amounting to 69 per cent., but that I. R. Mason was indebted to the bank in a sum greatly in excess of said stocks and dividends. On May 18, 1912, a supplemental answer was filed by leave of court, alleging that J. E. Zook claimed to have purchased the stock standing in the name of I. R. Mason prior to the filing of the garnishment proceedings and had instituted a suit to compel the transfer thereof. On December 11, 1912, the bank filed an amended answer, admitting that it had in its possession, and not detached from the original stock book, a certificate calling for ten shares of stock, to I. R. Mason, and that a request to issue the stock to Zook was made on January 15, 1912; the actual transfer to Mason on the books of said bank being made February 10, 1912. On December 14, 1912, the bank filed another amended answer.
On April 1, 1913, I. R. Mason and James A. Cotner filed a motion to discharge the garnishment on the ground that no bond was given, as required by section 5712, Comp. L. 1909 (section 4823, R. L. 1910), and that plaintiff had failed to join issue on the answer of the garnishee within 20 days by serving upon the garnishee a notice in writing electing to take issue on the answer, as provided by section 5718, Comp L. 1909 (section 4827, R. L. 1910). We do not think that section 5712, supra, applies to the garnishment proceedings in the case at bar. The conditions under which a garnishment can be procured under that section are either at the time of issuance of summons, or at any time thereafter before the final judgment, or upon judgment or decree, or at any time after the issuance, in case of an execution against property, and before the time when it is returnable, and when the proceedings are brought under this section it is necessary to give a bond....
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