Van Kirk v. Beckley
| Decision Date | 22 April 1932 |
| Docket Number | 28181 |
| Citation | 242 N.W. 358,123 Neb. 148 |
| Parties | E. P. VAN KIRK, APPELLEE, v. EDWARD L. BECKLEY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Knox county: DE WITT C. CHASE JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where the answer of a garnishee, as in this case, admits that he has funds in his hands which, but for a purported assignment made before the commencement of garnishment proceedings, belonged to the judgment debtor, and the assignee appears in open court and waives all his rights under such assignment to the fund or any part thereof, the court was empowered under section 20-1061, Comp. St. 1929, to immediately enter an order for the payment of the amount admitted to be due the judgment debtor for the satisfaction of the judgment or a part thereof.
2. After an assignee has disclaimed and waived all rights to funds garnisheed under an assignment by the judgment debtor, the garnishee is not required nor may he thereafter assert as a defense to said garnishment proceedings any right in the assignee under his assignment.
3. Where a garnishee answers that he has funds in his hands belonging to the judgment debtor, but that the same have been assigned in part to another, and the assignee, at the time fixed for the garnishee to answer, appears in open court and disclaims and waives all of his rights under his assignment to said funds, such assignee by his express waiver is estopped thereby from thereafter successfully asserting any claim to the funds or any claim against the garnishee under his alleged assignment.
4. " Whether property in the hands of a garnishee is exempt or not is to be determined as of the date of the service of the garnishee summons." Wilcox & Co. v. Deines, 119 Neb. 692, 230 N.W. 682.
5. Where at the time a garnishee summons is served the property thereby impounded is not exempt, a debtor cannot afterwards by transferring his property render the property in the hands of the garnishee exempt.
Appeal from District Court, Knox County; Chase, Judge.
Garnishment proceedings by E. P. Van Kirk against Edward L. Beckley, judgment debtor, and Bernard J. Huigens, garnishee. From a judgment in favor of the plaintiff, the judgment debtor and the garnishee appeal.
Affirmed.
W. A. Meserve, for appellants.
Rice & Rice, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge.
This is a proceeding of garnishment after judgment in aid of execution. The appellee, E. P. Van Kirk, recovered a judgment in the district court for Antelope county against Edward L Beckley, one of the appellants herein, for the sum of $ 1,655.50. On March 13, 1930, a transcript of said judgment was filed in the district court for Knox county. Thereafter an execution was issued out of said court on said judgment and returned unsatisfied. On August 4, 1930, the plaintiff commenced this proceeding in said court in aid of said execution by filing an affidavit of garnishment, in which it was stated, among other things, that one Bernard J. Huigens, one of the appellants herein, had in his possession and control more than $ 500, the property of the defendant, Edward L. Beckley, not exempt by law. On said day the court made an order that said Bernard J. Huigens appear on the 6th day of October, 1930, at the hour of 10 o'clock a. m. to answer concerning said money and other property of the defendant, Edward L. Beckley. On August 5, 1930, copies of said orders were personally served upon the garnishee and the defendant, Edward L. Beckley. The garnishee answered on the 4th day of October, 1930, admitting that during the month of October, 1929, a certain sum of money belonging to the defendant, Edward L. Beckley, came into his possession; that he had disbursed all of said sum excepting the sum of $ 500, which amount was retained by him for the purpose of protecting himself against an order issued by the defendant, Edward L. Beckley, purporting to assign the sum of $ 350 with interest thereon. He further alleged that Beckley instituted an action in the county court of Knox county against him to recover the said sum of $ 500, and that one Ed O'Shea intervened in said action claiming to be the owner of said order or assignment, and in said action recovered judgment against him on the 1st day of July, 1930, for the sum of $ 374 and costs, and that said case was appealed to the district court for Knox county and is pending therein; that he could not safely pay out said money, and requested that he be not required to make personal appearance until said matter was fully adjusted. On the 6th day of October, 1930, at the time fixed in the order or summons of garnishment, the matter came on for hearing and the court entered an order finding, on the pleadings of the plaintiff and the answer of Bernard J. Huigens, as garnishee, that said Huigens, as garnishee, had in his hands the sum of $ 500 not exempt from execution belonging to the defendant, Edward L. Beckley, and ordered that said amount should be applied to appellee's judgment. Thereafter on the 4th day of December, 1930, all the parties being present in court and not objecting thereto, it was found by the court that said order of October 6, 1930, did not correctly state the facts and the same was ordered corrected so as to show that it was based upon evidence offered, and that Ed O'Shea, claimant to a part of said fund and assignee thereof, stated in open court that he waived any claim to any money or funds in the hands of the garnishee, Bernard J. Huigens, as against any claim or judgment held or owned by the plaintiff, E. P. Van Kirk. This order was not included in the transcript as originally filed herein. The appellee filed a motion asking that a certified copy thereof be made a part of the transcript; this motion was submitted at the time of the argument of this cause. The motion is sustained and the order is made a part of the transcript. On the 25th day of October, 1930, the garnishee, Huigens, filed a motion to vacate the order of October 6, 1930, requiring him to pay the $ 500 in his hands to the appellee. The grounds of said motion being, in substance, the same as his answer filed prior to the entry of the order of October 6, 1930, except for the additional...
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