Ogden v. Mills

3 Cal. 253

• Court: California Supreme Court
• Decided: July 15, 1853
• Status: Published

Opinion

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

Where a garnishee, in discharge of a rule, answers, under oath, that he was released by the plaintiff from his obligation to answer, and that the plaintiff had abandoned his examination, he should be discharged by the court without further delay, unless his answer is controverted by the affidavit of the plaintiff.

And while a party is garnisheed to answer on a certain day, and appears, and the summoning party declines, or is not prepared to take his answer, and a term elapses without any action on the garnishment, the summons is discontinued, and the party discharged from liability to answer. This rule results from the peculiar relationship of the garnishee to the action. He at first partakes more of the character of a witness than a party; and as well might a witness be expected forever to appear because of one summons for a certain day. The business relations of men, who thus become incidentally connected with the litigation of others, cannot be allowed to be indefinitely suspended, on account of the gross laches of those others.

Judgment affirmed.