Park v. Nordale George Pirie Co.

Decision Date21 December 1918
Citation170 N.W. 555,41 N.D. 351
CourtNorth Dakota Supreme Court
PartiesPARK, GRANT & MORRIS v. NORDALE GEORGE PIRIE CO., Garnishee.
OPINION TEXT STARTS HERE
Syllabus by the Court.

Under the laws of this state, a garnishee action cannot be dismissed, in advance of trial, upon the motion of the defendant, supported by affidavit, on the ground that the averments of the affidavit for garnishment are untrue.

Additional Syllabus by Editorial Staff.

Garnishment is purely a statutory remedy, and is separate and distinct from the remedy of attachment.

Appeal from District Court, Cass County; Cole, Judge.

Action by Park, Grant & Morris against A. J. Nordale, with garnishment against the George Pirie Company. Defendant's motion to dismiss the garnishee granted, and plaintiff appeals. Reversed and remanded for further proceedings.

Robinson, J., dissenting.

Pfeffer & Pfeffer, of Fargo, for appellant.

A. C. Lacy, of Fargo, for respondent.

CHRISTIANSON, J.

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 (the record does not 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.

[1][2] 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 Ency. 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 chapter 9, Code of Civil Procedure (Comp. Laws 1913, §§ 7487-7596). 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. Chapter 65, Laws 1895. 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.” Section 7561, Compiled Laws 1913. 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. Section 7556, Compiled Laws 1913. 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 and appeals, and all provisions for enforcing judgments, shall be applicable thereto.” Section 7581, Compiled Laws 1913.

The statute prescribed the averments of the affidavit for garnishment and the form of the garnishee summons. Sections 7568, 7569, Compiled Laws 1913. The garnishment action is instituted by service of the garnishee summons and affidavit for garnishment upon the garnishee, but such service becomes null and void unless these papers are also served upon the defendant, either before, or within 10 days after, service on the garnishee. Section 7571, Compiled Laws 1913. The garnishee is required to answer the affidavit for garnishment by serving and filing an appropriate affidavit within 30 days from the time of service of the garnishment papers upon him; and the answer of the garnishee is deemed conclusive of the truth of the facts therein stated, unless the plaintiff within 30 days serves upon the garnishee a notice in writing that he elects to take issue on his answer, in which case the issue so formed stands “for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed a complaint and the garnishee's affidavit the answer thereto.” Section 7578, Compiled Laws 1913. In case the answer of the garnishee discloses that any other person than the defendant claims the indebtedness of the property in the hands of the garnishee, such party may be interpleaded. Section 7582, Compiled Laws 1913. And-

“The defendant may in all cases by answer duly verified, to be served within thirty days from the service of the garnishee summons on him, defend the proceeding against any garnishee upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such defendant or for any other reason is not liable to garnishment, or, upon any ground which a garnishee might defend the same, and may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests. And the garnishee may at his option defend the principal action for the defendant if the latter does not, but shall be under no obligations so to do.” Section 7580, Compiled Laws 1913.

The statute also provided that-

“The defendant may, at any time after the complaint is filed and before judgment, file with the clerk of the court an undertaking executed by at least two sureties, resident freeholders of the state, to the effect that they will on demand pay to the plaintiff the amount of the judgment with all costs that may be recovered against such defendant in the action, not exceeding a sum specified, which sum shall not be less than double the amount demanded by the complaint, or in such less sum as the court shall upon application direct.” Section 7586, Compiled Laws 1913.

These provisions were all part of the original garnishment statute enacted in 1895, and have remained a part of the laws of this state since their enactment, without any change whatever, until in 1917, when the Legislature provided:

“That in all cases where the defendant claims the debt or property garnished to be exempt, such claim of exemption may be heard and determined by the court at any time after the claim is made on three days' notice to the opposite party.” Chapter 124, § 3, Laws 1917.

It will be noted that the Legislature expressly provided that a garnishment proceeding shall be deemed an action, and tried as such, and judgment rendered after trial upon the issues framed by the pleadings therein. It further provided that-

“The defendant may in all cases by answer duly verified * * * defend the proceeding against any garnishee upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such defendant or for any other reason is not liable to garnishment.” Section 7580, supra.

Manifestly the specific grounds of defense enumerated in this section as available by way of answer directly involve the truthfulness of the averments of the affidavit for garnishment. The Legislature has prescribed the manner in which the truthfulness of the averments of the affidavit for garnishment is to be determined. With the existing attachment statutes before it, it decided to provide for the release or discharge of a pending garnishment proceeding by the defendant's giving a bond in substantially the same form as one of the bonds provided for the release of an attachment. But it did not see fit to provide for the release of a garnishment, upon a summary application, on the ground of the falsity of the affidavit for garnishment, although the then existing laws relating to attachments provided that an attachment might be discharged in this manner upon the ground that the affidavit for attachment is untrue. On the contrary, the Legislature expressly stated that the...

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15 cases
  • Hermes v. Markham
    • United States
    • North Dakota Supreme Court
    • September 8, 1951
    ...a motion to strike a portion of the pleading. That was the rule applied to a garnishment affidavit in the case of Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555. That was the rule followed in Gimble v. Montana-Dakota Utilities Co., N.D., 44 N.W.2d 198. The reasons for that rule ......
  • First National Bank of Dickinson, North Dakota, a Corp. v. Rohlik
    • United States
    • North Dakota Supreme Court
    • September 10, 1935
    ... ... In this state, as shown in ... [66 N.D. 78] Park, Grant & Morris v. Nordale, 41 ... N.D. 351, 170 N.W. 555, garnishment is ... ...
  • First Nat. Bank of Dickinson v. Rohlik
    • United States
    • North Dakota Supreme Court
    • September 10, 1935
    ...We must look to our own statute for the scope of this provisional remedy. In this state, as shown in Park, Grant & Morris v. Nordale et al., 41 N. D. 351, 170 N. W. 555, garnishment is a separate and distinct remedy from attachment and the distinctions are set forth in the case cited. Garni......
  • Hector v. McCormick
    • United States
    • North Dakota Supreme Court
    • December 30, 1933
    ... ... another manner. 26 Am. & Eng. Enc. Law, 605; Park v ... Nordale, 41 N.D. 357, 170 N.W. 555; Bank v. Brodie, 46 ... N.D ... ...
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