Gordon v. Wilson & Grady

Simmons, C. J. 1. Where a summons of garnishment .is issued and the garnishee answers admitting the possession of effects, and the garnishment is dissolved by a claimant who gives bond under section 3541 of the code, if no traverse is filed to the garnishee’s answer, the plaintiff may at the first term after such answer is filed, if he 'has obtained judgment against the principal defendant, move for a judgment upon the claim bond; but the claimant may, at any time before judgment is entered in favor of the plaintiff upon such bond, traverse under oath the answer of the garnishee and cause an issue to be made thereon. 2. In such a case the filing by the claimant of the bond to dissolve the garnishment is the filing of a claim, there being no requirement of the statute that such claims shall be filed under oath. 3. Even if that portion of section 4162 of the code which requires the filing within ten days of a -traverse to the garnishee’s answer is still of force, it has no application as between a plaintiff and a claimant in a proceeding under sections 3541, 3542 of the code. Judgment affirmed. Citations by counsel: Code of 1895, §§4150, 4153, 4155, 4156, 4611, 4720, 4723, 5856; Ca. Rep. 96 - 532; 82- 605; 80-491; 78-18; 73-131; 72-705; 71-229; 70-390, 741; 68-444, 812; 67-487; 66 - 350; 64- 608; 62- 683; 61 - 389; 59 -881; 56-394; 55-410; 52-498; 46 -295; 17 -299; Endl. Int. Stat. 280, 281, 731. Ma-cDonell & ¡Gordon, for plaintiff. Charlton, Maclcall & Anderson, contra.