Padden v. Moore

• Decision Date: 13 June 1882
• Citation: 12 N.W. 724,58 Iowa 703
• Parties: PADDEN ET AL. v. MOORE ET AL
• Court: Iowa Supreme Court

12 N.W. 724

58 Iowa 703

PADDEN ET AL. v. MOORE ET AL

Supreme Court of Iowa, Des Moines

June 13, 1882

Appeal from Winneshiek District Court.

ON the 12th day of March, 1878, the defendant, Webster, recovered a judgment in the Winneshiek District Court against William Padden. On the 15th day of October of the same year, the said court being then in session, execution issued on the judgment, and the plaintiffs herein were garnished as supposed debtors of the execution defendant. The plaintiffs were required by the notice of garnishment to appear at said court on the 9th day of that term being the 23d day of October. They went to Decorah, the place where said court was held, on that day intending to make answer, and the court was not in session, but had adjourned. Being advised of this fact, and not knowing but that the adjournment of the court was final for the term, the plaintiffs returned to their homes and gave the matter no further attention. The fact was that the court had adjourned on the day before plaintiffs were required to appear to some time after that time. After this adjournment, as we understand the record, a commissioner was appointed to take the answers of the plaintiffs, and a day was fixed for them to answer. The plaintiffs did not appear and the commissioner so reported.

At the March term, 1879, a default was entered against the plaintiffs and a judgment was rendered against them. On the 2d day of October, 1879, a notice was served on plaintiffs to show cause why execution should not issue against them on the judgment. November 1st, 1879, plaintiffs presented to the clerk of the court a showing why execution should not issue which showing was marked as filed, but the same was not entered upon the appearance docket and was taken by plaintiffs' attorney, who carried it to his home, which was some distance from the county seat, and the court ordered that execution issue against the plaintiffs.

Execution having been issued and levied upon certain chattels of the plaintiffs they commenced this action to enjoin the defendant, Moore, from proceeding with a sale of the property, on the ground that the judgment against them as garnishees was void, having been rendered without jurisdiction in the court rendering the same.

The cause was tried to the court and a decree was entered dismissing plaintiffs' petition, and they appeal.

REVERSED.

W. E Akers, for appellants.

Brown & Portman, for appellees.

OPINION

ROTHROCK, J.

I.

It appears from the record that the garnishment notice was served by a bailiff, who was duly appointed and acting as such at the term of the court which was in session when the execution issued. It is claimed by appellants that the court had no jurisdiction of them because the bailiff had no power to serve the writ. We do not find it necessary to determine this question, because we think the decree of the court below must be reversed on another ground, which we will proceed to consider.

II. It is claimed that the court acquired no jurisdiction of the persons of the plaintiffs as garnishees because there was no proper service of notice upon them. The execution was issued during a term of court, and plaintiffs were required by the notice to appear on a day named at that term. The statute, defining the time of appearance and the rights of a garnishee after he has made an appearance in answer to the notice upon him, is singularly indefinite and inexplicit. We believe the practice in some districts is to summon garnishees to appear on the first day of the term, and at the convenience of counsel who have the matter in charge a commissioner is appointed to take the answer of the garnishees, and the answer is taken at the convenience of all parties concerned except the garnishee. There should be some established practice upon the subject. In this case we are to inquire whether the garnishees were brought under the jurisdiction of the court by the service of any proper notice upon them. It is provided by section 2979 of the Code, that the notice to the garnishee must require him ...