Dooly v. Miles

Simmons, C. J. The code requires that when a summons of garnishment is issued, the officer shall serve it upon the person of the garnishee; which we think means that it shall be served personally and not left at his residence or most notorious place of abode. This is done to give the garnishee actual notice of the summons, in order that he may obtain it in time and file his answer in accordance therewith. If left at his residence or place of abode in his absence, he might fail to receive it and fail to make answer, and a judgment would be rendered against him when he might not be indebted to the defendant in the suit or judgment. Notwithstanding this, if the garnishee does receive the summons and appears at the term of court to which it is returnable, and, failing to file a written answer, deposes orally in court that he is indebted to the defendant in the suit or judgment, and the plaintiff does not require a written answer but is satisfied with the one given orally and does not traverse it, and a judgment is then entered against the defendant in the suit and the garnishee for the amount the latter admits to be due, the garnishee is estopped thereafter to set up the irregularity of his answer as affecting the judgment. He can not afterward complain either that he failed in his duty to file a written answer or that he was not served personally with the summons of garnishment. He should have insisted upon these points at the. time he appeared. He can not by his conduct thus mislead the court and damage the plaintiff. After a judgment has been thus entered up against him and execution issued thereon, he can not go behind this judgment by filing an affidavit of illegality thereto, based upon facts which existed and were known to him prior to the judgment. The magistrate erred in excluding the testimony offered, and the judge of the superior court erred in dismissing the certiorari. Judgment reversed. All the Justices concurring.