
    ERNEST JESSEN and A. T. Jessen, Copartners as Jessen Brothers, Plaintiff-Respondent, v. JOHN SCHILLER and Barbara Schiller, Defendant-Appellant, and BRESDEN-LARSON LUMBER COMPANY, a Corporation, Garnishee.
    (179 N. W. 372.)
    Exemptions — rule of liberal construction applies to filing claim of exemption in garnishment.
    1. The rule of liberal construction applies as to the time when a claim for exemption must he filed in a garnishment action in justice’s court.
    
      Exemptions — claim in garnishment may be made within time for answer.
    2. Under this rule of liberal construction, the time fixed for an appearance or answer in the garnishee for the filing of a claim for exemptions (Comp. Laws 1913, § 9068), in justice’s court is the time when an appearance or answer can be made from the hour specified in the garnishee summons so long as such garnishee action is open or awaiting the call of the court for an appearance or answer.
    Opinion filed September 25, 1920.
    In District Court, Hettinger County, Lemblce, J.
    Appeal by the defendant from a judgment rendered against the garnishee in favor of the plaintiffs.
    Reversed and dismissal of the garnishee ordered.
    
      Jacobsen & Murray, for appellant.
    A default cannot be taken before the expiration of time allowed for appearance to which the action has been adjourned. 24 Cyc. 595.
    The plaintiff did not take any issue on the garnishee’s answer. Therefore' the allegations of the answer are deemed and taken to be true. Comp. Laws 1913, § 7578. :
    
      Harvey J. Miller, for respondents.
    If the defendant does not assert his claim within the time and in the manner prescribed by law, his rights are waived. Purcell v. Gold-stein (N. D.) 136 N. W. 243; Lindley v. Miller, 67 111. 244; Griffin v. Maxwell, 23 111. App. 405; Alden v. Yeoman, 29 111. App. 53.
   Bronson, J.

This is an appeal from a garnishment judgment in favor of the plaintiffs upon findings made by the district court. The proceedings necessary to be stated are as follows: A civil action to recover $38.50, accompanied with garnishment proceedings, 'was instituted in justice’s court. The return day fixed in both the summons and garnishee summons was September 5, 1919, at 8 a. m. On the return day, about 10:30 a. u., upon proceedings had, judgment was rendered in the main action against the defendants for $49.65. As the record of the justice discloses, the garnishment proceedings were held open subject to the outcome of the main action. The justice’s record then recites as follows:

“Now, at 10:30 a. m. the garnishee by J. E. Eklund, Vice President, admits liability to the defendant John Schiller in the sum of $120. Now, at 10:30 a. m. the defendant John Schiller appears by his Attorneys, Jacobsen & Murray, and files written answer and claim for ■exemption, including schedule of his personal property. To which the plaintiff objects as insufficient, not having been filed at or before the time set for appearance of the garnishee. The court, after the claim, finds that it was not in time and therefore denies the claim. Judgment is hereby entered against the garnishee, Bresden-Larson Lumber Company, a corporation, for the sum of $49.40 and costs.”

Thereafter, the defendant John Schiller appealed from this garnishment judgment to the district court. Later, before the Honorable J. M. Hanley, District Judge, a motion for dismissal of the appeal, upon the grounds that the claim for exemption was not made in due form and in time, was denied and the cause set for trial by the court. Subsequently, the Honorable li. T. Lemblce, Distinct Judge, tried the action and made the findings of the court to the effect that the claim for exemption was not in due form and was filed too late. From the judgment rendered upon such findings the defendant John Schiller has appealed.

The objections of the respondent to the appeals taken by the appellant, the undertaking filed, the jurisdiction of this court as well as the jurisdiction of the trial judge, are without merit.

The real question in this case and the question presented for the consideration of this court is, Was the claim for exemptions filed within the time prescribed by statute ?

We are of the opinion that it was. The right to exemptions is recognized and enjoined by the Constitution. Section 208. It has been established by legislative enactments. Towards this right and the legislative enactments in support thereof, this court has continuously applied a liberal rule of construction in the protection of the debtor.

Under the strict rule of interpretation claimed by the respondents, it was necessary for the defendant to file his claim for exenqptions at the hour of 8 o’clock exactly, or before, although he had until the hour of 9 within which to make an appearance in the main action. Comp. Laws 1913, § 9029. And, under this rule, this would be so required, although no trial of such garnishee action could be had until the plaintiff recovered judgment in the main action. Comp. Laws 1913, §§ 7581, 9063. Under tbe rule of liberal construction tbe time fixed for appearance or answer in tbe garnishee summons for tbe filing of a claim for exemptions (Comp. Laws 1913, § 9068), is tbe time when an appearance or answer can be made from tbe bour specified in tbe garnishee summons so long as such garnishee action is open or awaiting tbe call of tbe court for an appearance and an answer. The very fact that tbe statute (Comp. Laws 1913, § 9068), concerning such claims contemplates an appearance, a defense, and a bearing negatives tbe idea of eo instante proceedings. Tbe judgment herein, both in tbe justice’s court and in tbe district court, is based upon tbe failure to file tbe claim for exemptions within tbe time allowed. No opportunity accordingly was afforded tbe defendant to amend bis claim, if in fact it was not in due form. Tbe judgment of tbe trial court is reversed and tbe dismissal of tbe garnishee action ordered.  