Hudson Coat Co. v. Hauf

109 P. 21, 18 Wyo. 425, 1910 Wyo. LEXIS 15

Opinion

Beard, Justice. ’

In this case the defendant in error, Hauf, recovered judgment against the plaintiff in error, Hudson Coal Company, in justice’s court for $138.15 and costs. The Coal Co. took the case to the District Court on error, where the judgment of the justice was affirmed. The Coal Co. brings ■the case here on error.

The action was brought by Hauf against the Coal Co. as garnishee in three suits brought by Hauf against three different defendants, on the ground that the disclosure of the garnishee in its answer in each of said cases was unsatisfactory to the plaintiff. The action was brought under the provision of Section 4476, R. S. 1899, Section 5340, Wyoming Compiled Statutes 1910, as follows: “If the •garnishee fails to appear and answer, or if he appears and answers, and his disclosure is not satisafctory to- the plaintiff, * * * * the plaintiff may proceed against him in an action in his own name, as in other actions, and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property, and the credits of every kind of the defendant, in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceeding against the garnishee, * * * The judgment in this action may be enforced as judgments In other actions.” Sec. 4477, R. S. 1899, Sec. 5341, Comp. Stat. 1910, provides, “Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment has been, determined.” Sec. 4458, R. S. •1899, Sec. 5321 Comp. Stat. 1910, provides, “All persons having in their possession or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of th.e writ and notice as provided in the last two sections shall, unless such property is deliv ered up or transferred, or such debts be paid to the officer to whom the writ is directed and delivered, be liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged or any judgment recovered by him be satisfied.”

There was no bill of exceptions filed in the District Court, and therefore the only questions properly before that court were, whether the Justice of the Peace had jurisdiction, and whether the pleadings were sufficient to sustain the judgment. It is insisted that there was no pleading upon which' judgment could be rendered, because the record fails to show that a petition was filed by the justice. The transcript of the justice's docket states that a petition was filed. And attached to the transcript is a petition and other, papers entitled in the case and certified by the justice to be all the original papers filed before him in the case, naming them, and all, including the transcript, under one cover upon which the only indorsement of filing by the Clerk of the District Court appears. In addition to which the petition in error in the District Court states that “a transcript of the docket entries and original papers in said cause are filed herewith.” These papers and the petition in error are marked filed by the clerk on the same date. We think the petition sufficiently appears to be the petition referred to in the transcript as having been filed with the justice, although not marked filed, by him. (Commissioners v. Shafner, 10 Wyo. 181; Todd v. Peterson, 13 Wyo. 513.)

It is further contended that the justice had no jurisdiction of the Coal Co. by reason of insufficient service and return of the summons; and that, even if it be held that what the Coal Co. did amounted to a general appearance, that a voluntary appearance in this action would not confer jurisdiction of the subject matter of the action. The transcript recites that on return day the plaintiff appeared by his attorney and asked for a continuance of the case until the afternoon, which was allowed, with consent of the attorney for the Coal Co.; that when the case was called in the afternoon the defendant appeared specially by its attorney “who files motion to quash for the reason that summons was not served and returned as required by law. Motion not sustained. Defendant now files affidavit and motion to dismiss for the reason, to-wit: 1st, the same as first motion filed and that there are other actions pending-on appeal between the same parties for the same cause. The motion not sustained. Defendant refused to appear further.” These acts of the defendant unquestionably constituted a general appearance in the action, whether the question of other actions pending between the same parties, for the same cause was properly presented by motion or not. (Honeycutt v. Nyquist, Peterson & Co., 12 Wyo. 183.) But it is argued that the proceeding in garnishment is in the nature of a proceeding in rem and that the requirements of the statute as to service and return must be strictly followed or jurisdiction is not acquired. For the purposes of this case that may be conceded. But we have no such case here. No complaint is made that the attachment suits were not properly and regularly brought or that the Coal Co. was not duly and regularly served as garnishee in those actions. The authorities cited by counsel are not in point. They treat of the service of the garnishment process in the attachment suits and not of the service of the summons in a suit brought against the garnishee under statutes like ours. Under our statute the answer of the garnishee cannot be controverted in the original action, nor can any judgment be rendered against him in that action, except to order him to deliver the property or pay any indebtedness to defendant into court, either for a failure to answer, for an unsatisfactory disclosure or upon an admitted indebtedness to the defendant. By the service of the garnishment process upon him' the garnishee becomes liable to the plaintiff in the attachment suit for any debt he then owes to the defendant in that suit; but whether he owes such debt, and the amount thereof, if he fails to answer or to make satisfactory disclosure or denies indebtedness, cannot be deter mined in that action, but is to be determined in a separate action by plaintiff against the garnishee. Our statute in that respect follows the Ohio statutes, and in that state it is 'held that “In an action property brought under this section, the plaintiff, as against the garnishee, occupies the position ■of the principal defendant, with the same rights which he had, and liable to be met by any defenses which the garnishee might make in an action brought against him by the principal defendant. The action is an independent proceeding, in which the plaintiff in the first action in attachment, occupying the place of the principal defendant therein, is plaintiff, and the garnishee in that action is defendant, and the latter is subordinate to the 'former action only to the extent that final judgment shall not be rendered against the garnishee in the latter, until the action against the principal defendant in the former has been determined. * * * The plaintiff is, in effect, substituted in all the rights and entitled to all the remedies the principal defendant would have had in an original action against the garnishee.” (Squair & McDonald v. Shea, 26 O. St. 645.) We do not think it would be conténded that, if the action had been brought by the defendant in the attachment suit against the ■Coal Co. for the recovery of the money here alleged to be ■due and owing from the Coal Co. to said defendant, the Coal ■Co. would not be hound by a general appearance in the action, or that the justice had no jurisdiction of the person of the defendant or of the subject matter of the action. In 'either case it is simply a civil action for the recovery of money only, and both are governed by the same rules of ■procedure.

In the petition in error in the District Court the sufficiency •of the petition to support the judgment is challenged because it does not allege that Hauf recovered judgments in the original actions. The allegations in the several counts of the petition are substantially the same. In the first count it is alleged that Hauf “was the plaintiff in an action 'begun in this court against one John Rogers defendant in which cause the said John Rogers defendant, confessed judgment in the sum of eighty-six and 50-100 dollars and costs of the action.” The case was in justice’s court where pleadings are to be liberally construed. There is also another rule applicable here, that “all uncertainties, irregularities, ambiguities, imperfections, and other defects in the manner of alleging a cause of action or defense, if a valid cause of action or defense, may nevertheless, with the aid of all lawful and reasonable presumptions, be found, even by implication, in the pleading, will be cured by the verdict or judgment.” (31 Cyc. 769.) There was not a total failure to state a cause of action, but rather a defective statement of a good cause of action, and in such case, the Coal Co. having appeared and having failed to object to the sufficiency of the pleading by demurrer or motion, or to object to the evidence, the defect in the pleading was cured by the judgment. There being no bill of exceptions, containing the evidence before the justice, the District Court could not do otherwise than presume that the evidence was sufficient to prove final judgments in favor of Hauf against the defendants in the actions in which the Coal Co. was the garnishee.

Other questions have been urged here, but they were not presented by the petition in error in the District Court. It seems to be the general rule, and we think the correct, one, that where a case is taken on error from an inferior court to an intermediate appellate court and the judgment of the 'inferior court is affirmed and the case is then taken on error to court of last resort, that the only questions that can be considered are those presented to the intermediate appellate court. That is, the Supreme Court will only determine whether or not the intermediate appellate court erred in its decision on the record presented to it. (Wesley et al. v. Milford, 41 Ind. 413; Rotach v. McCarthy, 102 Ind. 461; Davis v. Hines, 6 O. St. 473; Randall v. Turner, 17 O. St. 262; Ins. Co. v. McGookey, 33 O. St. 555; Railway Co. v. Construction Co., 49 O. St. 681; Distilling Co. v. Lock, 59 Mo. App. 637; Roseboom v. Whittaker, 123 Ill. 81.)

It does not appear that the District Court committed error in affirming the judgment of the justice on the record presented to it. The judgment of the District Court is there■fore affirmed. Affirmed.

Potter, C. J., concurs. Scott, J., did not sit in this case.