Whalen v. Harrison

27 P. 384, 11 Mont. 63, 1891 Mont. LEXIS 51

Opinion

De Witt, J.

The motion to discharge the garnishment was made in the District Court solely upon the ground that the garnishee, as a public corporation, was exempt from garnishment. No other ground was set forth in the written motion which is preserved in this record. That the motion on that ground should have been denied is settled. (Waterbury v. Commrs. of Deer Lodge County, 10 Mont. 515; 24 Am. St. Rep. 67.) Since the decision of the Waterbw'y Case, respondent filed his brief, in which he urges in this court that which he did not present below, viz., that it did not appear that any fixed debt was due from the garnishee to the defendant. Whether there was or not is not apparent from this record, and is a matter to be ascertained in the lower court in the manner provided by the law as to garnishment. (Code Civ. Proc. § 190.)

The order discharging the garnishment is reversed, and the case is remanded, with directions to the District Court to proceed in accordance with the views herein expressed.

Reversed.

Blake, C. J., and Harwood, J., concur.