Decatur v. Simpson

93 N.W. 496, 119 Iowa 488

• Court: Supreme Court of Iowa
• Decided: February 5, 1903
• Status: Published

Opinion

Bishop, C. J.

Based upon the facts as referred to im the foregoing statement, the appellant in the garnishment-proceedings, John Simpson, moves this court to discharge-the judgment standing against him as such garnishee, and. the cause is submitted upon such motion, and without arguments upon the merits of the appeal. While it is true-that an appeal does not operate to stay the enforcement-of a money judgment, no supersedeas bond being given,, still it is equally true that an execution issued upon such judgment, and all proceedings had thereunder, are depend-ant for their validity upon the judgment -being sustained. If property has been taken under such execution,restitution must be made. Code, section 4145. Of necessity, the rule must operate to release property held under garnishment, as well as property of a more tangible nature held under direct levy. Nor can it be said, in reason or upon authority, that a modification of the rule of the statute is called, for, when it appears that it had been judicially determined under garnishment proceedings that a garnishee holds property or credits belonging to the judgment debtor, and a judgment is rendered against such garnishee requiring him to deliver the property in his hands, or pay over the amount of his indebtedness, or sufficient thereof to satisfy the principal judgment. The judgment, which alone authorized the garnishment, being erroneous, all proceedings had thereunder are, as between the immediate parties, ipso facto void and of no effect. Waples, Attachment, p. 345, 346.

It is said in argument that the garnishment, and the judgment thereunder, ought not to be released, because of the fact that the principal case has been again tried, and another judgment rendered in favor of the plaintiff. W& are unable to see how such fact can affect the question-The garnishment had vitality only through the judgment upon which it was predicated. When the judgment-became extinguished, the garnishment, which was tratan incident to it, partook of its fate, and the right off the judgment defendant to have restitution made became absolute eo instanti. There is no authority for the' proposition that a garnishment proceeding can be kept-alive pending a new trial, and awaiting the possible arrival of a new judgment and execution under which it may again be fully vitalized, and to have effect as of the time-when the garnishment proceedings were first instituted. In other words, garnishment proceedings are not susceptible of affiliation with a judgment having the relation only of a foster or step parent.

It follows from what we have said that the trial court was right in sustaining the motion to discharge the garnishee, John Simpson, and the order of discharge appealed from in the second case above entitled is affirmed. There-being no farther necessity for considering the appeal im the case first above entitled, it is dismissed. — Dismissed-on first appeal. Aeeirmed on second appeal.