Smith v. Conrad

• Decision Date: 21 November 1892
• Parties: SMITH v. CONRAD et al.
• Court: Oregon Supreme Court

31 P. 398

23 Or. 206

SMITH v. CONRAD et al.

Supreme Court of Oregon

November 21, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action in a justice court by Peter Conrad and J.M. Schafer against Rudolph Nemitz, and garnishment proceedings on his account against B.M. Smith. Judgment against garnishee, and he appealed to the circuit court, which reversed the judgment. Defendants in circuit court appeal. Affirmed.

Dell Stuart and Ed. C. Russell, for appellants.

V.K. Strode, for respondent.

BEAN, J.

The plaintiff in this proceeding was duly served with a copy of a writ of attachment in an action at law in a justice's court, together with a notice specifying that all moneys or other property in his possession or under his control belonging to the defendant in the action, was attached; and his certificate in response thereto being unsatisfactory to the plaintiff, he was ordered and required by the court to appear before it on the 9th day of September 1891, and be examined on oath concerning the same. On the 5th of the same month, four days before the time fixed in the order, he appeared in court, and, as disclosed by the return to the writ of review, stated that he wanted to go to trial and waived the service of allegations and interrogatories whereupon (the plaintiff in the case consenting) the court proceeded to hear "the testimony of the parties," without allegations or interrogatories or pleadings of any kind, and adjudged and determined that the garnishee had "in his possession and under his control the sum of two hundred dollars belonging to the execution creditor," and entered a judgment against him, and in favor of plaintiff in the action, for that amount. He afterwards sued out a writ of review to the circuit court, upon which the proceedings in the justice court were vacated and annulled, and hence this appeal.

The only question for our consideration is whether a valid judgment can be had against a garnishee, without the allegations provided for in section 164 of the Code. ^[1] The proceedings are purely statutory, and the liabilities imposed and rights secured by the process of garnishment are regulated entirely by the statute, and to that we must look for the solution of the question before us. The statutes of the several states differ so radically in the mode of procedure that but little light is thrown upon this question by the decisions in other states. It is, however, generally agreed, whatever the method of procedure provided by statute that the process of garnishment is, in effect, an action or suit by the plaintiff in the principal action against the garnishee to enforce a liability existing against him and in favor of the defendant, (Wap. Attachm. 343 et seq.;) and the issue between the plaintiff and garnishee must be presented to the court for its determination in the manner provided by statute, (2 Wade, Attachm. § 346.) In Case v. Noyes, 16 Or. 329, 19 P. 104, and Id., 16 Or. 539, 21 P. 46, this court, at considerable length and with much care, examined and considered the various provisions of our statute on the subject of garnishment, and the office to be performed by the allegations; and it was there held that, after a garnishee had been required to appear and answer before the day fixed for that purpose, or within a time specified in the order, the plaintiff is bound to serve upon him written allegations and interrogatories, and without such allegations there is no foundation for any further proceedings against such garnishee; STRAHAN, J., saying: "Under the Code, the plaintiff in the original action by the process of garnishment becomes a plaintiff or actor against the garnishee. If the certificate which...