Meehan v. Parker

*652 Fellows, J. (after stating the facts). We find it necessary to consider but one of the objections raised by the defendant. In the recent case of W. H. Warner Coal Co. v. Nelson, 204 Mich. 317, it was held by this court (quoting from the syllabus) : ‘‘The proceeding in garnishment is special and statutory, affording a harsh remedy, and one pursuing it must bring himself within the statute and follow ifi mandates.” This was but a reiteration of what had been held in our earlier cases, some of which were cited in the opinion in that case. See, also, Bank of Italy v. Welsh, 213 Mich. 286; Hiles v. The Selas Co., 219 Mich. 88. At the time the judgment was rendered against the principal defendant section 10612, 3 Comp. Laws 1897, controlled the proceedings. It is as follows: “If the plaintiff obtain judgment against the principal defendant, in the circuit court, and the latter does not, within two days thereafter, serve upon the garnishee notice of motion for new trial, or of his intention to remove the cause to the Supreme Court, the statutory issue shall stand for trial at that term of the court on the docket containing the suit in the order of formation of such issue: Provided, That in case the suit be on the court dockét and a jury be demanded by the garnishee, the court shall appoint *653 a day for the jury trial of such cases, unless the jury be dismissed, and in that event, the-case shall stand on the jury docket of the next termProvided, further, That continuances may be applied for and granted, as in ordinary cases, and that the plaintiff shall cause the clerk to place the case on the docket in its proper position, and shall give notice thereof in writing to the garnishee at the same time.” It will be noted that the legislation then in force contemplated a speedy trial of garnishment proceedings following the judgment in the principal case. While the garnishee defendant may not later object to a delay he has consented to (Meigs v. Weller, 90 Mich. 629), nor later question the propriety of a continuance where he has accepted a continuance fee; (Kiely v. Bertrand, 67 Mich. 332), he does not without some acquiescence on his part waive the rights conferred upon him by the statute which creates this statutory remedy and at the same time limits the manner of its enforcement. In the last cited case it was said: “The act contemplates a speedy determination of the garnishee’s liability, and any considerable delay by plaintiff, not consented to or acquiesced in by the garnishee, will be cause for a dismissal of the proceedings against him.” In the case of Blake v. Hubbard, 45 Mich. 1, where this statute was before the court, it was said by Mr. Justice Campbell, speaking for the court: “The garnishee statute contemplates speedy proceedings. Its necessary operation is to tie up the hands of the garnishee and subject him to expense and annoyance. It cannot be regarded as a proceeding in the ordinary course, for it involves many consequences which could not otherwise arise either in law or in equity. If such proceedings could be delayed indefinitely it might not only injure the garnishee, but it might also affect other persons who have claims on the property in his hands. It appeared in this case that defendant offered to show subsequent garnishee *654 proceedings commenced before the final decision of the chancery suit, but was not allowed to do so. “The statute, section 6477 of the Compiled Laws, declares that if the plaintiff obtain judgment against the principal defendant and there is not within two days a notice of motion for new trial or that the case will be removed to the Supreme Court, the statutory issue shall stand for trial at the term of the court, on the docket containing the suit in the order of the formation of such issue. If a jury is demanded the court is to appoint a day unless the jury has been dismissed, and then it is to stand on the jury docket of the next term. Continuances may be granted as in other cases, and the plaintiff is required to see that the case is docketed, and to notify the garnishee. By Section 6481 provision is made that if the principal cause is appealed to the Supreme Court and affirmed, the issue in garnishment shall be tried at the end of the next court or term to which the case has been continued, or at the end of that which was in existence at the time of affirmance. * * * “We think that the cause cannot be kept open without either a continuance in form or some action equivalent to a consent of the garnishee. * * * “We think that unless Blake was a party to this delay the proceedings must be regarded as abandoned.” The trial judge entertained the view that the disclosure was the equivalent of a request for a continuance of the case and that the plaintiff would have been entitled to a continuance by calling attention to the disclosure and that it would be an idle ceremony to place the case on the docket each term and have it continued. We are unable to accept this construction of the disclosure or to agree that it was unnecessary to follow the requirements of the statute governing this statutory proceeding in order to keep the proceeding alive. The garnishee defendant was required in response to the writ served upon him to truthfully disclose whether he had property in his possession belonging to the principal defendant and whether he owed the principal defendant any money. He made *655 a full and complete statement of the facts; it is not questioned but that he told the truth. He made the only disclosure he could truthfully make. Can it be said that because the disclosure established that he was not then liable to the principal defendant that this was tantamount to a request on his part that the proceedings against him should be continued over an indefinite period until he might after many years become liable? We think not. He had no interest in keeping this lawsuit against himself in court for years with the attendant expense. He was but a stakeholder indifferent as to whether he paid to plaintiff here, the plaintiff in the Mexican suit or the principal defendant. It does not follow because he disclosed this situation to the court, because he came into court in response to writ served upon him and disclosed the true state of affairs, that he thereby either directly or inferentially asked that this statutory proceeding take any other than the usual course. If the plaintiff desired to keep this statutory proceeding alive the statute itself pointed the way. By defendant’s disclosure he did not waive the right to insist that these statutory provisions should be followed. In this court it is insisted that the stipulation of May 19, 1910, postponing the trial to a later date .in the April term constituted a waiver. Under the statute the case stood for trial at the April term; a stipulation postponing such trial to a later date in the same term was not a waiver of the right to have it tried at that term. The claim is also made in the brief that the order of continuance of June 26, 1922, was not objected to and it is insisted that this was a waiver. This is not sustained by the record. As heretofore stated it does not appear that defendant’s counsel was present when this order was made or the circumstances under which it was made. . Before it was made defendant had filed his written objections including the claim that by reason of the delay the case *656 was no longer in court. These objections were a part of the files and before the court as well when the order for continuance was made as they were when the case was set down for trial. Defendant’s counsel seasonably by motion raised the question of the jurisdiction of the court to hear the case after the long delay and upon the trial again raised it. He has not waived the question and has properly saved it for review. Sokup v. Davis’ Estate, 206 Mich. 144, As plaintiff’s case must stand or fall upon the files and records of the court below and as these files and records could not be changed or any different case made on a new trial, we perceive no reason for granting one. The case will, therefore, be reversed without a new trial. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.