Park, Grant, & Morris v. Nordale
| Decision Date | 19 November 1918 |
| Court | North Dakota Supreme Court |
Rehearing denied December 21, 1918.
Appeal from the District Court of Cass County, Cole, J.
Plaintiff appeals from a judgment dismissing a garnishee action.
Reversed.
Reversed and remanded.
Pfeffer & Pfeffer, for appellant.
A decision of the original state rendered subsequent to the adoption of a statute by another state has no more weight in the adopting state than that to which it is entitled by reason of its intrinsic merit. Germania etc. Co. v Ross-Lewin (Colo.) 51 P. 488; Myers v. McGavock (Neb.) 58 N.W. 522; Barnes v. Lynch (Okla.) 59 P. 995; Wyoming etc. Co. v. State (Wyo.) 97 P. 337.
The court of the adopting state will not blindly follow the construction given a particular statute by the court of a state from which the statute was borrowed when the decision does not appeal to them as founded on right reasoning. Elias v. Territory, 9 Ariz. 15, 76 P. 605; Anaconda Div. No. 1, A. O. H. v. Sparrow, 29 Mont. 135, 64 L.R.A. 128 101 Am. St. Rep. 563, 74 P. 197.
The general rule is that none of the parties to garnishment proceedings can invoke the aid of a court of equity to enforce his rights, or obtain relief from garnishment proceedings in the absence of any showing that he has exhausted his remedy at law, or that he is without any legal remedy. 20 Cyc. 1071 and cases cited.
Courts must confine themselves to the construction of the law as it is, and not attempt to amend or change the law under the guise of construction. Flowing Wells Co. v. Culin (Ariz.) 95 P. 111; Curry v. Lehman (Fla.) 47 So. 18; Ellis v. Boer (Mich.) 114 N.W. 239; Philadelphia Fire Asso. v. Love (Tex.) 108 S.W. 158, 810; Waldron v. Taylor (W. Va.) 45 S.E. 336; St. Louis etc. Co. v. Delk, 158 F. 931, 162 F. 145; Clark v. Kansas City etc. Co. (Mo.) 118 S.W. 40; Ex parte Pittman (Nev.) 99 P. 700; Com. v. Jonger, 21 Pa. S.Ct. 217; Walker v. Vicksburg etc. Co. (La.) 34 So. 749; Austin v. Cahill (Tex.) 88 S.W. 542, 89 S.W. 552.
The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention, however, must be the intention expressed in the statute, and where the meaning of the statute is plain, it must be given effect by the courts, or they would be assuming legislative authority. Tynan v. Walker, 95 Am. Dec. 152; Stout v. Grant County (Ind.) 8 N.E. 222; Lahart v. Thompson (Iowa) 118 N.W. 398; Barron v. Kaufman (Ky.) 115 S.W. 787; Com. v. International etc. Co. (Ky.) 115 S.W. 703; Gooden v. Lincoln etc. Jury (La.) 48 So. 196; Cearfoss v. State, 42 Md. 403; Detroit v. Detroit etc. Co. (Mich.) 120 N.W. 600; State v. Woodruff (N.J.L.) 52 A. 294; Coxson v. Doland, 2 Daly, 66; State v. Barco (N. C.) 63 S.E. 673; Propst v. Southern etc. Co. (N. C.) 51 S.E. 920; Slingluff v. Weaver (Ohio) 64 N.E. 574; Union etc. Co. v. Com. 69 Pa. 140; Bradbury v. Wagenhorst, 54 Pa. 180; Ex parte Brown (S.D.) 114 N.W. 303; State v. Montella etc. Co. (Utah) 98 P. 540; United States v. Goldenberg, 168 U.S. 95; Atlantic etc. Co. v. United States, 168 F. 175, affirming 153 F. 918; United States v. Colorado etc. Co. 15 L.R.A.(N.S.) 167, 157 F. 321; United States v. Marks, Fed. Cas. No. 15,721; Ezekiel v. Dixon, 3 Ga. 146; United States v. Starn, 17 F. 435; Re Lime County Seat, 15 Kan. 500; Goble v. Simeral (Neb.) 93 N.W. 235; Woodbury v. Berry, 18 Ohio St. 456; Choctaw etc. Co. v. Alexander (Okla.) 54 P. 42, 52 P. 944; Miles v. Wells (Utah) 61 P. 534; Rossmiller v. State (Wis.) 58 L.R.A. 93, 89 N.W. 839; Lake County v. Rollins, 130 U.S. 662; Thornley v. United States, 113 U.S. 310; United States v. Tyler, 105 U.S. 244; Union etc. Co. v. Champlin, 116 F. 858; Webber v. St. Paul etc. Co. 97 F. 140; Farmers etc. Co. v. Oregon etc. Co. 24 F. 407; Prindle v. United States, 41 Ct. Cl. 8; Rodgers v. United States, 36 Ct. Cl. 266, affirmed in 185 U.S. 83; Horton v. Mobile etc. Comrs. 43 Ala. 598; Martin v. Martin etc. Co. 27 App. D. C. 59; Idaho etc. Co. v. Myer (Idaho) 77 P. 628; Louisville etc. Co. v. Gaines, 3 F. 266; Ogden v. Strong, Fed. Cas. No. 10,460.
A. C. Lacy, for respondent.
Where the counter affidavits show that when the garnishment proceedings were instituted defendants had and still have property liable to execution to satisfy plaintiff's demand, it is proper, under the general law and practice of this country relative to attachments, to move upon affidavits to dismiss. Orton v. Noonan, 27 Wis. 572, 19 Wis. 174.
Our garnishment statute was copied from Wisconsin, where it has been held: "Where the garnishment proceedings were based upon a false affidavit, the proper procedure was either upon a motion or order to show cause to have same dismissed." Orton v. Noonan, 27 Wis. 572; German-American Bank v. Butler-Mueller Co. (Wis. ) 58 N.W. 746; Thoen v. Harnstrom (Wis.) 73 N.W. 1011; Graves v. Posner (Iowa) 82 N.W. 445.
The words "duly verified" mean to conform by oath, and an affidavit is a written declaration under oath. Wertz v. Lamb, 43 Mont. 477, 117 P. 89, 92; Boder v. State, 179 Ind. 268, 94 N.E. 1009, 1011; Taygard Valley Brewing Co. v. Villar Mfg. Co. 184 F. 849; State v. Trook, 172 Ind. 558, 88 N.E. 930, 931; Sommerfield v. Phoenix Assur. Co. 65 F. 296.
An affidavit for garnishment which fails to state whether contract is express or implied is fatally defective. 2 Shinn, Attachm. & Garnishments, § 592; Conway v. Ionia Circuit Judge, 46 Mich. 28, 8 N.W. 588.
This is an appeal in a garnishee action. It is undisputed that the garnishee summons and affidavit for garnishment, both in due and proper form, were served upon the defendant and the garnishee and filed with the clerk of the district court in the manner and within the time provided by law. The garnishee filed an affidavit admitting liability in the sum of $ 1,051.57. The defendant did not interpose an answer in the garnishee action (nor does the record show whether he interposed an answer in the main action), but he made a motion for a dismissal of the garnishee action on the ground that the plaintiff owned property in this state liable to execution sufficient to satisfy plaintiff's demand, and that consequently the averments to the contrary in the affidavit for garnishment were false. In support of the motion to dismiss, the defendant submitted his own affidavit setting forth certain property which he claimed to own, as well as the alleged value of such property. The plaintiff resisted the motion on the grounds that the question could not be raised, and that the court had no power or authority to determine the same, upon a summary application to dismiss, but that it must be raised by answer and determined as an issue upon the trial of the garnishee action. The court dismissed the garnishee action, and plaintiff appeals.
The first, and in our opinion the controlling, question which arises in this case is whether a defendant may move to dismiss a garnishee action in advance of trial on the ground that the affidavit for garnishment is untrue. As already stated no question is raised as to the sufficiency of the form and contents of the garnishee summons and affidavit for garnishment, or as to the regularity of the service and filing of these papers.
It should be noted at the outset that in this country garnishment is purely a statutory remedy. 9 Enc. Pl. & Pr. 809; 20 Cyc. 978; 12 R. C. L. 776. And under our statutes, attachment and garnishment are entirely separate and distinct remedies. See Code Civ. Proc. 1913, chap. 9. See also 20 Cyc. 978. The remedy by attachment was provided for in the laws of the territory of Dakota. And the principal provisions of our present law upon the subject are contained in the 1877 Code of the territory of Dakota. The remedy by garnishment was first provided in this state in 1895. Laws 1895, chap. 69. And the law as then enacted, with certain amendments subsequently made, constitute our present law on the subject of garnishment. Under the laws in force at the time the garnishment statute was enacted, it was provided that an attachment may be vacated on the motion of the defendant upon the ground, among others, "that the affidavit upon which it was issued is untrue." Comp. Laws 1913, § 7561. It was further provided that an attachment may be vacated upon the application of the defendant, by his furnishing a bond with sufficient surety, conditioned: (1) That the property shall be forthcoming in substantially as good condition as it is at the time of the application to answer any judgment which the plaintiff may recover in the action; or (2) that the defendant will on demand pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a specified sum, which sum must be at least equal to double the amount of plaintiff's demand, as specified in the warrant of attachment; or, at the option of the defendant, equal to double the appraised value of the property attached according to the sheriff's inventory. Comp. Laws 1913, § 7556. As already stated these statutory provisions relative to attachments were in force at the time the legislature enacted the law relative to garnishment.
In the garnishment statute as originally adopted the legislature provided: "The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all provisions of law relating to proceedings in civil actions at issue, including examination of the parties, amendments and relief from default or proceedings taken...
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