Thomas v. Hoffman
| Decision Date | 04 December 1883 |
| Citation | 17 N.W. 431,62 Iowa 125 |
| Parties | THOMAS v. HOFFMAN, GARNISHEE. HOFFMAN v. THOMAS AND OTHERS. SIGLER v. HOFFMAN. HOFFMAN v. SIGLER AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeals from Adams district court.
These cases are submitted together as involving the same questions of law. Sigler and Thomas are creditors of one Parsons. Each having a judgment against him obtained in the district court of Adams county, caused an execution to issue and caused Hoffman to be garnished. The garnishee answered to the officer serving the notice, showing no indebtedness, and in addition thereto appeared at the next term of court, to-wit, the October term, 1882. The attorneys for the garnishing creditors did not see fit to examine him in court, but caused a commissioner to be appointed to take his answer in each case. No time or place, however, was fixed in the order of appointment for the examination, and no notice by the commissioner of the fixing of any time or place for the examination was served upon the garnishee. Eight days after the commissioner was appointed, he made a report that the garnishee had failed to appear and answer. The garnishing creditors then moved to strike from the files the answers made by the garnishee to the officer, and moved for judgment against him for failure to appear before the commissioner, as shown by his report. The court sustained the motions and ordered that an absolute judgment be rendered against the garnishee in each case, and that an execution issue against him. The fact of the rendition of such judgments did not come to the garnishee's knowledge until after the expiration of the term at which they were rendered. When the fact did come to his knowledge he filed a motion in each case to vacate the judgment. An execution having in the mean time issued in each case, he filed two petitions in equity asking for an injunction to restrain the executions. Writs of injunction were issued, but the garnishing creditors filed motions to dissolve the injunctions. The garnishee's motions to vacate the judgments were overruled, and the creditors' motions to dissolve the injunctions were sustained. The garnishee appeals in each case.Anderson & Towner and Deacon & Smith, for appellant.
R. A. Moore, for appellees.
Where a commissioner is appointed to take the answer of a garnishee, and the court does not fix the time and place for the answer to be taken, it is to be inferred that the intention of the court was that the commissioner should fix the time and place. This the commissioner may do by serving a notice on the garnishee of the time and place at which he is to answer. We know of no other way in which the time and place could properly be fixed by the commissioner. He could not do it by a mere mental determination, nor by making a record of the same in his office or elsewhere. A record made at a time and place not known to the law is not binding upon any one. No notice having been served upon the...
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