Howland v. Jeuel

56 N.W. 581, 55 Minn. 102, 1893 Minn. LEXIS 152

• Court: Supreme Court of Minnesota
• Decided: October 20, 1893
• Docket: No. 8323
• Status: Published

Opinion

Mitchell, J.

It is more than doubtful whether the record in this case is sufficient to bring up any question for review. But, waiving this point, we discover no merit in the appeal.

The voluntary general appearance of the appellant waived all defects in the garnishee summons or in the mode of its service on the garnishee. It was not necessary that the affidavit of garnishment should state that the garnishee was a corporation. It is at least an open question whether it is necessary, even in a pleading in an action by or against a corporation, to aver the incorporation, except in cases where the action, as its gist or substance, involves the corporate existence, in which case, of course, it would have to be alleged, the same as any other fact constituting the cause of action. No such averment was required at common law, and we have no express statute changing the rule. 1878 G. S. ch. 66, § 111, was intended merely to simplify the form of pleading where an averment of incorporation is necessary. Dodge v. Minnesota P. S. Roofing Co., 14 Minn. 49, (Gil. 39.)

But it is enough for the present purposes to say that the statute in relation to affidavits for garnishment (1878 G. S. ch. 66, § 164) does not require any such averment, and, as in any case of attachment, an affidavit is sufficient if it conforms to the statute.

Judgment affirmed.