Solon v. O'Shea

Bronson, J. This is an appeal from an order of the distinct court vacating garnishment proceedings, upon a motion and order to show cause. The record presented to this court comprises the files, pleadings, and process on file in the office of the clerk of the district court in such action, together with the papers on appeal. To this record is attached only the certificate of the clerk, certifying that such papers constitute those on file of record in such action. In the order of the district judge, vacating and setting aside the garnishment proceedings involved, and in his memorandum opinion, setting forth the reasons therefor, there is no recital stating, and in the record there is no certificate by the trial judge certifying what papers, affi [365] ■davits, or evidence were presented or considered upon the hearing of such motion. Briefly the facts are these':'— In September, 1918, the plaintiff instituted an action to recover an alleged balance for goods, wares, and merchandise sold. In July, 1919, garnishment process was served upon the garnishee herein. No service thereof was made upon the defendant. Subsequently, in September, 1919, new ganishment process was served upon the garnishee and the defendant. Pursuant thereto, the bank made disclosure of its indebtedness to the defendant. Subsequently, in November, 1919, the motion and order to show cause, herein involved, was made to vacate and annul both of such garnishment proceedings, apparently upon grounds of jurisdiction, and, further, that such garnishment process was used for the improvident purpose of harassing the defendant. In dismissing the garnishment proceedings, the trial court determined that a notice of dismissal of the first garnishment should, among other things, have been given to the defendant before the second garnishment, and that there were other matters appearing, from the affidavits of the parties, that would sustain the court in vacating such garnishment proceedings. It is apparent that appellate procedure must rest upon a record settled as the statute requires. What matters may have been considered by the trial court upon this hearing, what affidavits or even evidence was presented, not contained in this record, if any, is not disclosed. The statute requires, as well as the rule of this court, either that the order of the trial court describe the papers, or evidence upon which the same was made, or that a certificate to that effect be made. See §§ 7822, 7944, Comp. Laws, 1913, chap. 131, Laws 1913; Supreme Court Rule 24 [145 N. W. xiii]; Harris v. Hessin, 30 N. D. 33, 151 N. W. 4. Manifestly this court cannot review the order of the- trial court upon this record. The appeal is dismissed, without costs. Christianson, Oh. J., and Bobinson and Birbzell, JJ., concur.