Twin Falls Realty Co. v. Brune

• Citation: 264 P. 382,45 Idaho 579
• Decision Date: 14 February 1928
• Docket Number: 4962
• Parties: TWIN FALLS REALTY COMPANY, a Corporation, Respondent, v. M. A. BRUNE, Defendant; ALBERT WOLTERS, Garnishee and Appellant
• Court: United States State Supreme Court of Idaho

264 P. 382

45 Idaho 579

TWIN FALLS REALTY COMPANY, a Corporation, Respondent, v. M. A. BRUNE, Defendant; ALBERT WOLTERS, Garnishee and Appellant

No. 4962

Supreme Court of Idaho

February 14, 1928

APPEAL AND ERROR-FAILURE TO FILE TRANSCRIPT-MOTION TO DISMISS-GARNISHMENT-ANSWER-EXCEPTION-JUDGMENT.

1. Where no transcript of evidence in cause was filed within time required because reporter's notes of evidence taken at trial had been lost, so that appellants were unable to procure a transcript of same, motion to dismiss appeal should be denied, leaving matter before supreme court on judgment-roll.

2. Where there was neither transcript of proceedings had on trial nor bill of exceptions in case, papers and files in case, including writ of attachment and affidavit, certified to supreme court in accordance with praecipe filed by appellant therefor, not being part of judgment-roll, could not be considered in determination of questions raised under C. S., sec. 6901.

3. Jurisdiction of trial court to render judgment against garnishee could be properly raised at any time during progress of cause, even in supreme court.

4. Where judgment against garnishee recited that garnishee answered garnishment denying that he owed anything to defendant, and there was nothing in judgment to effect that plaintiff excepted to or denied answer of garnishee, and neither answer of garnishee nor any exception or denial thereof appeared in record, there was no issue before trial court upon which it could render judgment against garnishee under C. S., secs. 6790-6793, relating to garnishment.

5. District court had power to require garnishee to appear before it for examination in respect to any indebtedness owing from him to defendant, but it had no authority to render judgment against him without an opportunity given him to contest question of his liability to defendant at hearing upon an issue legally raised as provided by C. S., secs 6790-6793.

APPEAL, from the District Court of the Eleventh Judicial District, for Jerome County. Hon. T. Bailey Lee, Judge.

Action on a promissory note. Appeal from judgment against garnishee. Reversed.

Reversed and remanded with instructions. Costs to appellant.

E. D. Reynolds and H. L. Reynolds, for Appellant.

C. A. Bailey, for Respondent.

Counsel cite no authorities on points decided.

BABCOCK, Commissioner. Adair, C., Wm. E. Lee, C. J., and Budge, Givens and Taylor JJ., concurs. T. Bailey Lee, J., disqualified.

OPINION

BABCOCK, Commissioner.--

This appeal is taken by Albert Wolters from a judgment rendered in favor of the respondent and against said Wolters, as garnishee, on April 15, 1926.

Judgment was rendered in the main case in favor of the plaintiff and respondent, and against M. A. Brune, defendant, on September 5, 1925, for $ 665 and costs.

A motion to dismiss the appeal was made by the respondent on the ground that no transcript of the evidence in the cause had been filed within the time required by the court. This motion was heard in this court on December 21, 1926, and, by the judgment of the court, denied January 15, 1927.

Upon a hearing of the case on its merits this motion was renewed on the ground that no transcript of the evidence had yet been filed. From the statements of the attorneys for the appellant it appears that the reporter's notes of the evidence taken at the trial have been lost, and that they were unable for that reason to procure a transcript of the same.

We are of the opinion that the motion to dismiss the appeal should be denied, which would leave the matter before the court on the judgment-roll.

In addition to the papers constituting the judgment-roll the clerk of the trial court has certified to this court, in accordance with the praecipe filed by the appellant therefor, all papers and files in the case, including the writ of attachment, and the affidavit of one H. S. Beals; but there being neither a transcript of the proceedings had upon the trial, nor a bill of exceptions in the case, and these papers not being a part of the judgment-roll, they cannot be considered in the determination of the questions raised by the appellant. (C. S., sec. 6901; Bergh v. Pennington, 33 Idaho 726, 198 P. 158; Storey & Fawcett v. Nampa & Meridian Irr. Dist., 32 Idaho 713, 720, 187 P. 946; Ballerino v. Superior Court of Los Angeles County, 2 Cal.App. 759, 84 P. 225.)

There is but one question raised for the consideration of the court, and that is the jurisdiction of the trial court to render the judgment against the garnishee. This is a question that may be properly raised at any time during the progress of the cause, even in this court.

From an examination of the record constituting the judgment-roll it appears that the judgment against the defendant in the main action was by default. The record, as certified by the clerk, contains the summons, proof of service, complaint, and default of the defendant, judgment against the defendant, and, also, judgment against the appellant garnishee. There is no answer of the garnishee to the garnishment, and no exceptions to or denial of any such answer in the record as certified by the clerk.

The judgment against the appellant recites that the matter came on for hearing on March 31, 1926, upon the order of the court, made on March 21, 1926, requiring Albert...