McLean v. Sworts

• Decision Date: 28 June 1897
• Docket Number: 10,633--(184)
• Parties: H. M. McLEAN and Another v. C. R. SWORTS and Others
• Court: Minnesota Supreme Court

71 N.W. 925

69 Minn. 128

H. M. McLEAN and Another v. C. R. SWORTS and Others

Nos. 10,633--(184)

Supreme Court of Minnesota

June 28, 1897

Appeal by plaintiffs from an order of the municipal court of Minneapolis, Holt, J., discharging the garnishees, S. C Tooker & Co. Affirmed.

In any event, the trial court did not err in making the order appealed from, and it must be affirmed.

Morse & Sweetser, for appellants.

Charles R. Fowler, for respondent.

OPINION

START, C. J.

This is an appeal by the plaintiffs from an order of the municipal court of the city of Minneapolis denying their motion for judgment against the garnishee, and discharging him. The trial court based its action upon the ground that the disclosure does not show that at the time the garnishee summons was served the garnishee had any property in his hands belonging to the defendant.

The property sought to be reached in the hands of the garnishee was four car loads of apples, represented by the same number of bills of lading. It is claimed by the garnishee that two of the bills of lading came to his possession and control on the day the garnishee summons was served upon him, but after the time of such service, and that the other two were received by him on the day following, and not before. The trial court accepted this construction of the disclosure, and discharged the garnishee. The plaintiffs claim that this was error, for the following reasons:

1. Because the service of the garnishee summons attached and bound all property of the defendant which came to the possession or control of the garnishee during the entire day on which the service was made, although it came to his possession after the time the summons was actually served. Such is not the law. To support a judgment in favor of a plaintiff against the garnishee, the disclosure, where the motion for judgment is, as in this case, based upon it, must show that at the time of the service of the summons upon him he had property belonging to the defendant in his possession or control, or was then indebted to him. The garnishee cannot be held for the property of the defendant coming to his possession or control after the service of the summons in the proceedings against him. Nash v Gale, 2 Minn. 265 (310). This is the uniform rule in all jurisdictions.

It is claimed, however, by the plaintiff that our present statute (G. S. 1894, § 5309), which provides that "the service of the summons upon the garnishee shall attach and bind all the property * * * in his hands * * * at the date of such service," must be construed as if it read "during the day of such service." It is true, as claimed, that the statute in force at the time the case referred to was decided contained the words "from the time of the service of such summons," but the substitution for this clause of the terser expression "at the date of such service," found in the present statute, indicates no intention to change the meaning of the statute in the particular here in question. The history of the statute proves this. In its original form it read:

"The person summoned as a garnishee, from the time of the service of such summons, shall be deemed liable to the plaintiff in such suit to the amount of the property * * * in his hands or possession, or under his control." R. S....