Northwestern Fuel Co. v. Kofod

START, C. J.

The appellant, Bertram G-. Leveroos, appealed from the judgment of the district court of the county of Ramsey against him, as garnishee, in favor of the plaintiff.

A garnishee summons in this action was served on the appellant, and he appeared specially, and moved the court to dismiss the garnishee proceedings, and quash the summons as to him, on the grounds:

(a) That several garnishees, having no identity of interest in the things garnished, were, under one affidavit and summons, sought to be jointly and severally garnished.

(b) That the affidavit and summons were defective in form and substance.

(c) That the summons was not returnable before any court or officer thereof, and that the special term of court at which it was returnable had no existence in law.

1. There was one garnishee summons, but several parties were named therein as garnishees, and they, and each of them, were thereby required to appear and make disclosure. The contention of the appellant is that the parties so named and summoned cannot be held as garnishees, unless they are all jointly liable to the principal debtor. A sufficient answer to this claim is that each of the parties was summoned to appear and make disclosure as to his indebtedness to the defendant, or as to any money or property of the defendant in his possession.

Each garnishee is to answer for himself, and there is no more impropriety in including any number of parties as garnishees in the same summons, if they are required to answer as to any indebtedness due from them, or each of them, to the defendant, or as to any property belonging to the defendant in the hands of them, or each of them, than there would be in levying upon separate items of the defendant’s property in the possession of several parties by one and the same writ of attachment. 2 Shinn, Attach. § 603; Curry v. Woodward, 50 Ala. 258. There was no defect, in form or substance, in the affidavit or summons as to the appellant.

2. The garnishee summons contained the title of the action, designated the court in which it was pending, and required the appellant

“To appear at a special term of above court to be held at the court house in the city of St. Paul, in the county of Bamsey and state aforesaid, on Saturday, the 19th day of March, 1898, at ten o’clock in the forenoon of that day.”

The appellant claims this does not designate any officer or court before whom the garnishee is required to appear. The language used is not technically exact, but any person of ordinary intelligence could not fail to understand from the summons that he was to appear in court at the special term thereof named, and make disclosure.

There is no merit in the appellant’s claim. Nor in his further claim, that the garnishee proceedings should have been dismissed because there was no special term of the court legally appointed to be held on the return day of the summons. This last claim of the appellant is based upon the proposition that an order, made more than 20 years ago and ever since acted upon, directing that special terms of the district court of the county of Bamsey for the hearing of all matters, except the trial of issues of fact, be held on Saturday of each week, is invalid. This order was held valid by this court in the case of Hoffman v. Parsons, 27 Minn. 236, 6 N. W. 797.

The later case of Flanagan v. Borg, 64 Minn. 394, 67 N. W. 216, relied on by appellant, has no application to special terms for the hearing of matters other than the trial of issues of fact. In the case cited the district court had, in effect, attempted by its order •to establish an additional general term of the court.

It is also urged that the order appointing the special term in question was never posted, as required by G. S. 1894, § 4850. There is no proof in the record that it was not posted. The alleged proof is simply to the effect that there is now no evidence in the clerk’s office of such posting. The statute did not require proof of the posting of the order to be made and filed in the clerk’s office. But, this aside, the order has been acted upon by the court for more than 20 years, and it is immaterial in this case whether it was ever posted or not..

Judgment affirmed.