Duncan v. Sangamo Fire Ins.

35 Iowa 20

• Court: Supreme Court of Iowa
• Decided: September 17, 1872
• Status: Published

Opinion

Beck, J.

I. The court, in its order, requiring notice to be served upon the garnishee, as well as in the final order allowing execution, denominates the notice or process issued and served upon the garnishee a scvre facias. Appellant claims that the notice is not a scvre facias, and therefore the proceedings are erroneous, and the final order, awarding execution, cannot be sustained. We readily concur that the notice issued by the court is not a yrit of scvre facias, and that the court erred in giving it that name. But we are not prepared to concur that the improper use of the term scvre facias, in describing the notice ordered by the court, is such an error as will invalidate the proceeding. The substance of the notice issued, as well as of the order made by the court, is in accordance with the law, and it is not pretended by counsel that they are in the least degree objectionable, except as to the inaccurate use of the term scire facias. The court pursued the course pointed out in the statute, the things required were done — nothing more and nothing less. But an improper name was given to a notice issued in the proceedings. The name in the case is not of so much importance as that the validity of the legal proceedings will depend upon its right use. We are unable to see how defendant was, or could have been, by ■any possibility, prejudiced by the error. It affords no reason, therefore, for interfering with the judgment of the court below.

II. The counsel of appellant filed, an affidavit, stating that he did not appear because of an agreement or understanding between himself and the counsel of the other party. But these statements are contradicted, directly and positively, by plaintiff’s attorney. We cannot, therefore, interfere with the judgment of the court below upon this conflicting evidence.

Affirmed.