Central Lumber Co. v. Dougherty , 43 S.D. 580 ( 1921 )

POLLEY, J.

This is an appeal from an order denying a motion to vacate and set aside garnishlment proceedings against the appellants as garnishee defendants in this action. Plaintiffs recovered a money • judgment against the principal defendant. Thereafter plaintiff caused garnishee summons to 'be issued and served upon the. appellants. Thereupon appellants procured an order to -show cause why the said garnishment proceedings-,should not be dismissed on the ground that judgment -had been entered, but that no execution was then in force.

The -only question involved .on the appeal is whether, in such case, an execution must be issued and be in force as a 'prerequisite 'to the issuance of a garnishee sumimons. The answer to the question depends 'upon the meaning of section 2454, Rev. Code. This section reads as- follows:

“Either at the time of the issuing of a summons, -or at any time thereafter before final judgment, in any action to recover damages founded (Upon contract, express or' implied, or upon judgment or decree, or at any time after the issuing in any -case of an execution against property and before the time when it is returnable. * * * ”

This means that in an action for the recovery of damages founded either upon a contract express or implied, or upon a judgment or decree, a garnishee sumimons -may be issued at the time of issuing the summions -in the action or at any time thereafter before the entry of final judgment; or, if the garnishee summons is not issued before the entry of final judgment, then it cannot be issued until an execution has -been issued and prior to the time when such execution is returnable. In other words, if the garnishee summons is not- issued prior to the entry of judgment it cannot be issued thereafter unless an execution has been issued and is in force. In this case no execution was in force at the time of the issuance of the garnishee summions; therefore there was no authority for issuing such summons, and the defendant’s motion to dismiss the same should have been granted.

The order appealed from is reversed.