Black v. Brisbin & Bigelow

By the Qoivrt — Elandrau, J. The case herein discloses that Black was indebted to one "Webb, in the sum of $95,00. That "on the 14th day of July, 1859, Crumby sued Webb, and commenced a proceeding of garnishment against Black, in said suit, to procure the transfer of this debt to him. That he made an affidavit to procure the garnishee summons, and left it with his attorneys, who thereupon issued the garnishee summons, without filing the affidavit, and it was served upon Black. That on the 15th day of July, the day after the garnishee summons was served on Black, but before the filing of the affidavit, Webb assigned the demand of $95,00 which he held against Black, to Brisbin and Bigelow, the Defendants in Error. That Black was at once, and before the filing of the affidavit, notified of the fact that the demand had been assigned to Messrs Brisbin & Bigelow,,and also of the fact that the garnishee proceedings against him were irregular, in that no affidavit had been filed. Black paid no attention whatever to this information, but suffered the proceedings in garnishment to go on without objection or protest, until judgment was perfected against him upon his own disclosure. There are two things necessary to give a Court jurisdiction of proceedings in garnishment, under our statute ; one, that the principal action is “founded upon contract express or im [363] plied, or upon a judgment or decree;” the other, that an affidavit has beén made and filed, setting forth the indebtedness, &c., of the party to be garnisheed. No summons can be properly issued without the existence of these pre-requisites. H. 8., Ghap. 91, Sea’s. 1, & 2, y>. 453. The only way that Brisbin & Bigelow could assert their rights, was to notify Black of the assignment and. the irregularity of the proceedings. They would not have been permitted to appear in the suit and make the objections; and good faith, at least, should have induced Black to present them to the Court, before swearing that he was indebted to Webb, as he must have done before judgment could have passed against him. A party is bound to protect himself in judicial proceedings, by asserting his rights when he is aware of them, as there are many ways in which they may be forfeited by his voluntarily sleeping upon them. If Black had presented these points to the Court below, the proceeding against him would undoubtedly have been dismissed, and if not, he could have corrected the error on appeal. The silence of Black, when fully advised of the rights of Webb’s assignees, looks very much like’’ collusion with Crumby, to overreach them, and the law will never allow a party to shield himself behind a judgment obtained under such circumstances. It is unnecessary to decide whether the omission to file the affidavit until after the issuing of the summons, is such a defect as to render the proceedings absolutely void, in cases where the rights of third parties do not intervene, because the facts disclosed in this case leave the garnishee, Black, in the position of a party estopped by his own wrong, from taking advantage of what under different circumstances might have availed him. The Court below was undoubtedly correct in its holding on this point, and we affirm the judgment.