Claflin, Mellen & Co. v. Iowa City

Wright, J. The objection is interposed and insisted upon, that Iowa City was never served with notice of garnishment; was never in court, and that as a consequence, there was no error in overruling this motion. As it involves a question of jurisdiction, it is first in order, and if ruled in favor of appellee, must dispose of the case. And it seems to us that it is well made. “The attachment by garnishment is effected by informing the supposed debtor or person holding the property, that he is attached as a garnishee.” (§ 1861, Code of 1851; § 8195, Rev. of 1860.) And debts due a defendant may be levied upon under execution, in the manner provided for attaching the same, and the proceeding-by garnishment shall be the same as near as practicable. (§ 1892, Code 1851, Rev. 1860, §§ 326Q — 70.) In this case, Iowa City never was notified as a debtor of Clark. Dey, McCaddon and King were notified. It is true they are described as being the Mayor, Recorder and Treasurer of the City, but they are not even summoned as such officers. The notice was not served upon them as officers, nor was there any service upon any person as the representative of Iowa City, as the actual and doubtless intended defendant. The city was, therefore, never in courts to interpose any objection to any of the proceedings. And because McCaddon interposed no objection to answering a question, tho purpose of which clearly was to arrive at the supposed indebtedness of tho city to Clark cannot avail plaintiffs to the extent of estop-ping the corporation from denying the jurisdiction claimed. Nor do we know that the objection is made for the first time in this court. For aught that appears, the court beloiv may [287] have overruled, plaintiffs’ motion on this very ground. Whether so or not, however, we are clear that it would have been error to have rendered judgment against the city under the circumstances disclosed. Other questions are made, which need not be examined. Affirmed.