State ex rel. Austrian v. Duncan
| Decision Date | 20 September 1893 |
| Citation | 37 Neb. 631,56 N.W. 214 |
| Parties | STATE EX REL. AUSTRIAN ET AL. v. DUNCAN, COUNTY JUDGE. |
| Court | Nebraska Supreme Court |
1. In order to found proceedings in garnishment in aid of an attachment, it is necessary that the affidavit required by law be filed in the court issuing the process before notice is served upon the garnishee.
2. In order that proceedings in garnishment may be pleaded against third parties, it must affirmatively appear from the record that the steps were taken necessary to confer jurisdiction, and a voluntary appearance and answer by the garnishee does not supply the place of such jurisdictional proceedings.
3. Under section 946 of the Code, where several attachments are levied upon the same property, or the same persons are made garnishees in several cases, the justice issuing the order first served may, upon motion of any of the plaintiffs, determine the amounts and priorities of the several attachments, and he has authority to do this as well when the validity of some of the attachments or garnishments is disputed as when their validity is unquestioned.
4. A determination of priorities, so had, constitutes an adjudication which cannot be collaterally attacked.
5. The county court, acting within its special jurisdiction, has power to vacate judgments and final orders during the term at which they were rendered.
6. In cases within the jurisdiction of a justice of the peace, a county judge possesses only the powers of a justice, and can only vacate judgments and final orders in cases where justices are expressly authorized so to do.
7. A county court, acting within its special jurisdiction, may vacate its judgments or final orders for irregularity in obtaining the same, upon proceedings had in pursuance of sections 602 to 610, inclusive, of the Code.
8. An order vacating such judgment or final order is not void for want of a finding that the applicant had a valid defense or cause of action. The want of such finding renders the proceedings, at most, only irregular or erroneous, and they are not on that account open to collateral attack.
Commissioners' decision.
Original action in the name of the state, at the relation of Austrian, Wise & Co., against J. F. Duncan, county judge, for mandamus. Writ denied.Wigton & Whitham, for relators.
Mahoney, Minahan & Smyth, D. A. Holmes, and John R. Hays, for respondent.
This is an original application for mandamus to require the respondent, county judge of Madison county, to pay to the relators the amount of a judgment recovered by relators, out of certain moneys paid into court in pursuance of garnishment proceedings, and alleged to be properly applicable to the satisfaction of relators' judgment. There was an order of reference, and a report made by the referee in favor of the relators, and the case now comes up upon the relators' motion for judgment upon the report, and the respondent's exceptions to the report.
Upon December 1, 1888, suits were begun in the county court of Madison county by Kaminer, Prinz & Co., the J. T. Robinson Notion Company, Frankenthal, Freudenthal & Co., W. V. Morse & Co., and Turner & Jay, against Cornbleth & Pelzer, and attachment proceedings were instituted in each case. Upon the part of the respondent, there was offered in evidence before the referee affidavits entitled in each case as follows:
“D. A. Holmes, one of the attorneys for the plaintiff above named, being first duly sworn, deposes and says that he has good reason to believe, and does believe, that the Norfolk National Bank has property of the defendant, to wit, a stock of merchandise, in its custody in this county. D. A. Holmes.
Subscribed in my presence, and sworn to before me, this 1st day of December, 1888. George M. Beels, Justice of the Peace.”
These affidavits were all objected to as incompetent. The copies appearing in the bill of exceptions show no certificate of filing, and from some arguments in the brief it may be inferred that they were delivered to the officer, with the order of attachment, upon December 1st. They were not filed in court until May 11, 1889. The officer returned the orders of attachment, showing that upon December 1st he served the Norfolk National Bank, as garnishee, in each of said cases. Upon December 3d the relators commenced the action resulting in the proceedings upon which this case is based. They also instituted attachment proceedings, and filed an affidavit for garnishment against the Norfolk National Bank, R. E. Levy, and John R. Hays. Upon December 4th, notice of garnishment was served. These proceedings are admitted to be regular in every respect. Upon January 14, 1889, John R. Hays filed a written answer verified by his oath, a single paper bearing the titles of all of the cases, and proceeding as follows: “Comes now John R. Hays, and for answer in garnishmentin the above-entitled causes of action, and in each of them, shows the court as follows: That on December 1, 1888, the defendants Cornbleth & Pelzer made and executed a chattel mortgage to the Norfolk National Bank of Norfolk, Neb., for $500, on all of defendant's stock of merchandise, etc., in Norfolk, Neb., and on the same day defendants executed another chattel mortgage for $500 on the same goods to R. E. Levy, subject to the first above described mortgage, both of which mortgages were on the same day placed in the hands of John R. Hays for collection. That immediately affiant, on the same day, took possession of the mortgaged property under both of said mortgages, and proceeded to sell the same at both public and private sale, as thereby authorized. That all the mortgaged goods have been sold, and the same have realized the sum of $2,527.98. That the expenses of said sale, so far paid out, amount to the sum of $297.73. That affiant does not know of any further expenses, but there may possibly be a small bill or two yet unpaid. That affiant has paid to the Norfolk National Bank the amount due said bank on the above-mentioned mortgage,--as principal, $500, and interest, $2.08; total, $502.08. That affiant has not yet paid over to R. E. Levy the amount due on said mortgage, but still holds the same. That there still remains in the hands of affiant the sum of $1,728.17, as follows:
+--------------------------------------------+
¦Amount realized ¦ ¦$2,527 88¦
+--------------------------+-------+---------¦
¦Expenses paid ¦$297 73¦ ¦
+--------------------------+-------+---------¦
¦Paid Norfolk National Bank¦502 08 ¦799 81 ¦
+----------------------------------+---------¦
¦Now in affiant's hands ¦ ¦
+--------------------------------------------+
--That there is now due and should be paid to R. E. Levy on the mortgage hereinbefore mentioned the sum of $500, with interest thereon, at 10 per cent., from December 1, 1888, and the balance left after that is held subject to the order of the court. That neither the Norfolk National Bank, nor the officers thereof, nor R. E. Levy, knew anything about the amounts realized, nor the expenses attending the same, and none of them have any money or property of any kind in their control or possession, and had not at the time of garnishment, as affiant is informed and verily believes. That affiant, therefore, respectfully asks that garnishee Norfolk National Bank and garnishee R. E. Levy be discharged as such garnishees. That affiant be directed by the court to pay to R. E. Levy the amount due on the mortgage mentioned, and that the court direct this affiant as to the amounts and persons to whom to pay the balance left, and that, when so paid, affiant be also discharged under the garnishment proceedings.”
In the course of time, judgments were rendered against Cornbleth & Pelzer in each of the cases, and upon May 17th an order was made in each case directing Hays to pay into court the sum of $1,205.84, in accordance with his answer. Upon the same day, in the Kaminer, Prinz & Co. case, the following order was made: ...
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