Wightman v. Kruger

• Decision Date: 05 June 1901
• Citation: 49 A. 395,23 R.I. 78
• Parties: WIGHTMAN et al. v. KRUGER SAMB v. KIRBY et al.
• Court: Rhode Island Supreme Court

49 A. 395

23 R.I. 78

WIGHTMAN et al.

v. KRUGER

SAMB

v. KIRBY et al.

Supreme Court of Rhode Island.

June 5, 1901.

Action by Wightman Bros, against Charles Kruger, in which Kirby & Co. was garnished. From a judgment in favor of the plaintiffs and against both defendants, they petition for a new trial. Petitions denied.

Edward C Stiness, for plaintiffs.

John A Tillinghast, for defendants.

BLODGETT, J. These two petitions for new trial are considered together upon the following agreed statement of facts: "(1) That on October 16, 1897, the plaintiffs commenced action against Kruger in the district court of the Tenth judicial district, and served a copy of the writ on George Kirby and Oharles H. Grout for the purpose of attaching the personal estate of Kruger his their hands; (2) that Kirby and Grout returned to the court affidavit showing no funds; (3) that petitioners were subpcenced (returnable March 3, 1899) to appear before said Tenth district court to testify as to their liability as garnishees; (4) that said Grout attended, and testified orally, and on March 3, 1899, said court rendered judgment charging Kirby and Grout as garnishees for $18.50; (5) that on July 7, 1899, plaintiffs brought an action against said garnishees under the statute, and recovered Judgment October 24, 1899. (6) that on March 2, 1900, garnishees filed a petition for a new trial in both cases on the ground of accident and mistake." While the charging by the district court of Kirby & Grout, as garnishees, upon oral testimony, was erroneous (Raymond v. Tinware Co., 14 R. I. 310), nevertheless the garnishees had appeared by the filing of in heir affidavits, and the court had Jurisdiction of the subject-matter of the defendants, and of the garnishees, and it appears by the agreed statement that the garnishees were charged upon their own testimony. In Alves v. Barber, 17 R. I. 714, 24 Atl. 528, the court decided that the charging of a garnishee was, 'in effect, a Judgment of the court, which, unless appealed from, was conclusive, not only upon the liability of the garnishee, but also of the rights of the parties to the fund." And see Eddy v. Machine Co., 15 R. I. 7, 22 Atl. 1116. Being an error of haw, the remedy therefore should have been pursued by exception to the ruling of the district court, taken to the appellate division of the supreme court under the provisions of section 12, c 250, Gen. Laws, as follows: "Any party to a civil suit, or suit in form civil, commenced in...