Hewlett Bros. v. Mallett

117 P. 68, 39 Utah 357, 1911 Utah LEXIS 53

• Court: Utah Supreme Court
• Decided: July 12, 1911
• Docket: No. 2212
• Status: Published

Opinion

STRAUP, J.

In December, 1902, a judgment was obtained in the justice court in favor of Hewlett Bros, against F. J. Mallett. Thereafter the office of the city court was created. The incumbent of that office succeeded tbe justice, and took over his records. A garnishment was issued on the judgment by the city court and was served on the Utah Copper Company July 11 1908. Upon its answer that it was indebted “to the defendant-F. J. Mallett,” a judgment was entered against it, on the 15th day of July, 1908. On July 22d of that year the copper company served, and on the 25th day of that month filed, a motion “to vacate'and set aside the judgment against” it. The motion was “made upon the papers on file” in the cause “and upon the affidavit of F. J. Mallet.” In that affidavit Mallet deposed that his name is F. J. “Mallet,” not “Mallett;” that he at no time was indebted to Hewlett Bros., and at no time had any dealings with them; that he was not served with summons or other process in the action brought by them against F. J. Mallett; “that at the time certified to by the constable that service of the summons herein was made upon him,” at Salt Lake City, “your affiant was in the Hawaiian Islands;” ánd that he had no knowledge that Hewlett Bros, had brought any action against him until in July, 1908, when the garnishment was served on the Utah Copper Company. Counter affidavits were filed on behalf of Hewlett Bros, that the deponent Mallet and the person served with summons and against whom judgment was had in the case was the same person, and that he, at the time of the purported service and return of the constable, was in Salt Lake City. Upon a hearing of the motion the city court made and entered the following order or judgment: “Garnishee’s motion to set aside the garnishee judgment herein and to release the garnishment came on regularly, Attorney IT. S. Harper appearing in behalf of the plaintiff and Attorney F. B. Scott appearing in behalf of the garnishee, Utah Copper Company. F. J. Mallet was sworn and testified, and plaintiff introduced as evidence the affidavit of F. G. Luke and E. G. Hines. The motion was now argued to the court by the attorneys for the respective parties, and the court, having considered the same and being now fully advised in the premises, ordered that the said motion be granted, and that the garnishee judgment herein be set aside, and that the garnishment levied by virtue of the execution issued on July 11, 1908, be released.” Hewlett Bros, thereupon filed an affidavit in the district court for a writ of review in which it was deposed, among other things, that the Htah Copper Company was garnisheed, and a judgment entered against it upon its answer admitting an indebtedness to F. J. Mallett in an amount for which judgment w,as taken against it; “that no motion for a new trial or to set aside the default therein was made by either defendant (Mal-lett or the Htah Copper Company) or any person or party to said' proceeding;” but the city court, nevertheless, “made and entered an order in said cause purporting to set aside the said judgment against the said garnishee and to release the garnishment;” and that in doing so the city court exceeded its jurisdiction. Hpon the filing of the affidavit of such petitioners, the district court directed the city court to certify and return to it a transcript of the record and of the proceedings. A transcript of such record was certified and returned to the district court. Hpon a review of it, the order or judgment of the city court, setting aside the judgment against the garnishee and releasing the garnishment, was affirmed. From that judgment of the district court Hewlett Bros, has prosecuted this appeal.

The statute (Comp. Laws 1907, section 3113) provides that motions for new trials may be made in the same time and manner and shall be allowed for the same grounds in garnishment proceedings as in other civil trials; and that appeals may be taken and prosecuted from any final judgment or order in such proceedings as in other civil cases. There is also another statute (section 686x29) which provides that the sections of the Code of Civil Procedure relating to the rules and practice and mode of procedure in the district court and providing for provisional remedies and prescribing the practice and procedure in special proceedings, and all the laws of this State, except as in the chapter creating the city court otherwise provided, are applicable to the city court with the necessary changes and substitutions. It will be observed that the grounds of the motion to set aside the judgment were not stated. No objection, however, was made in the city court for tbat reason. Tbe court proceeded to bear tbe motion upon affidavits and upon oral testimony. Tbe testimony of tbat proceeding is not before us. Neither did tbe court in granting tbe order setting aside tbe judgment and releasing tbe garnishment state any grounds therefor. 33 ut, again, no objection was made on tbat ground. Hence we bave a record wbicb shows tbat, upon a bearing of a motion stated in general terms to set aside the judgment rendered against a garnishee, an order was made, also in general terms, setting aside tbe judgment and releasing tbe garnishment without disclosing tbe grounds upon wbicb tbe motion was made or tbe order granted. While it is contended that tbe city court bad no jurisdiction to set aside a judgment rendered against a garnishee, it is not claimed tbat it was without jurisdiction because no grounds for the motion were stated. .The contention made by appellant is that the garnishee’s motion was not for a new trial nor to set aside a default judgment, but was one seeking a collateral attack on tbe original judgment, and tbat tbe city court was without jurisdiction to entertain such a motion or to set aside or annul tbe original judgment.

Tbe city court undoubtedly bad jurisdiction to entertain a .motion to set aside tbe judgment rendered against tbe garnishee and to release tbe garnishment, and to 1 grant tbe order wbicb was granted, setting aside and vacating, not tbe original ■ judgment rendered and entered against Mallett, but tbe judgment rendered and entered against tbe garnishee, and releasing the garnishment. It bad tbe same power in tbat particular tbat tbe district court has. Tbe granting of such an order does not necessarily result from an assault on tbe original judgment, nor from annulling and setting aside tbat judgment. The order here made may bave resulted from a finding 'that tbe Mallet to whom tbe garnishee was indebted was not tbe Mallet- who’ was served with summons in tbe original action and against whom tbe judgment of Hewlett Bros, was bad. We think it is not sufficiently made to appear on tbe record certified to and returned tbat tbe city court acted without, or exceeded, jurisdiction. Tbe ruling made by it may have been erroneous. If Hewlett Bros., tbe petitioners, were aggrieved by that, they could bave taken an appeal to tbe district court, where tbe matter could bave been tried anew.

Tbe order made by tbe city court after final judgment in tbe original action, setting aside tbe judgment bad against tbe garnishee and releasing tbe garnishment 2 was, in effect, a dismissal of tbe garnishment proceedings and ended tbe litigation with respect thereto. Such an order so made was final within tbe meaning of tbe statute providing for an appeal in garnishment proceedings and was appealable.

Tbe judgment of tbe district court is affirmed. Costs to tbe respondent.

BRICK, C. J., and McOARTT, L, concur.