Bower Bros. v. Hansen , 129 Iowa 148 ( 1905 )

Deemer, J.

The notice served upon the garnishee was defective, in that it did not require him to appear on the first day of the next term of court, and did not state that, if he failed to appear and answer, he would be liable to pay the judgment which plaintiff might obtain. Code, sec. 3935. Padden v. Moore, 58 Iowa, 703.

Moreover, according to all the evidence, the. garnishee was excused from entering an appearance and answering on the first day of the term; and, as the trial court had appointed a commissioner to take answers of all garnishees cited to appear at the term, the garnishee, after being excused from answering on the first day, could not thereafter be held in default, without notice' from the commissioner as to the time when and place where he should make answer. Thomas v. Hoffman, 62 Iowa, 125.

While there is a decided conflict in the testimony regarding the arrangement between the garnishee and plaintiff’s attorneys with reference to his .(the garnishee’s) appearance, we are satisfied that there was a misunderstanding about the matter, and that the garnishee was not intentionally at fault. He came to Glenwood, the county seat, after his. first appearance in answer to the notice of garnishment, and was then informed, probably without authority, that the case was not ready for disposition, and he understood that he was to have notice as to when he would be needed. No such notice was given; but garnishee was .informed that he need not again appear until called rtpon. A much slighter showing of diligence or excuse is needed to warrant the setting aside of a default against a garnishee than in cases of ordinary default. Evans v. Mohn, 55 Iowa, 302. The garnishee shows in his motion that he was in no way indebted to the judgment defendant, and that he held no property of his when he was garnisheed.

Taking the record as a whole, we are constrained to hold that the motion to set aside the default should have been sustained, and that the trial court was in error in denying it.

Bor the reasons pointed out, the judgment must be, and it is, reversed.