
    Gilmore & Ruhl v. W. Cohn, Defendant, D. O. Johnson, Garnishee, The First National Bank of Omaha, Intervener, Appellants.
    Garnishment: defective notice: Waiver. A garnishee waives the defect in a notice requiring him to appear on a specified day-before the first day of the next term of court instead of on such first day, as required by Code, section 2979, by voluntarily appearing and answering, although on the condition that the priority between such claim and others subsequently served shall be settled at a future time, and that no rights or claims are waived by taking the answer.
    
      Appeal from Crawford District. Court. — Hon. G. W. Paine, Judge.
    Monday, May 17, 1897.
    This is a contest between certain attaching creditors over their respective priorities to a fund now in the hands of the clerk of the Crawford county district court, arising from the sale of certain goods belonging to their joint debtor, Cohn, one of the defendants in this action. Plaintiff’s attachment was first in point of time, but the intervener, the First National Bank, of Omaha, claims that it is entitled to priority, for the reason that plaintiff’s attachment, which was served by garnishing one D. 0. Johnson, a mortgagee in possession, notified him to appear at a time when no court was in session. The court below found against the intervener, and the intervener appeals. —
    Affirmed.
    
      
      J. P. Connor and Byers & Lockwood for appellant.
    
      Shaw & Kuehnle for appellees.
   Deemer, J.

— The notice of garnishment served on Johnson, under plaintiff’s writ of attachment, cited the garnishee to appear before the district court in and for Crawford county, commencing-on the fifteenth day of February, 1893. The notice served under the writ issued in the intervener’s case, cited the garnishee to appear at the said court on the first day thereof, which commenced on the twentieth day of February, 1893. Appellant contends that, as the notice of garnishment served in appellee’s case notified the garnishee to appear at a time when no court was in session, no jurisdiction was obtained of the garnishee, and that its attachment, if of any validity, must be postponed to that of appellant. It should also be stated that the garnishee appeared on the first day of the February, 1893, term of said court, and his answers were then taken by agreement of the parties, upon this condition: “That the priority of the several claims should be settled at a future time, and that neither party, by the taking of the answer at that time and place, waived any rights or claims they had on the fund.”

The question for our determination involves a construction of the statutes with reference to garnishment. The material sections of the Code relating to this subject are as follows: Section 2975: “The attachment by garnishment is effected by informing the * * * person holding the property that he is attached as garnishee, and by leaving with him a written notice to the effect ® * * that he must retain possession of all property of * * * defendant then and thereafter being in his custody in order that the same may be dealt with according to law. * * *” Section 2979: “Unless exempted as provided in the next section the notice must also require the garnishee to appear on the first day of the next term of the court wherein the main cause is pending * * * and answersuch interrogatories as may be then propounded to him, or that he will be liable to pay the entire judgment which the plaintiff eventually obtains against the defendant.” The next section provides that when the plaintiff, in writing, directs the sheriff to take the answers of the garnishee, the sheriff shall put to him certain questions set out in the section; and the following section provides, in substance, that if the garnishee refuses to answer these questions fully and unequivocally, he shall be notified to appear and answer on the first day of the next term of court, and that he may be so required in any event if the plaintiff so notify him. Section 2984 provides that if, when duly summoned, he fails to appear and answer the interrogatories put to him, without sufficient excuse for his delinquency, he shall be presumed to be indebted to the defendant to the full amount of plaintiff’s demand, and shall be dealt with accordingly. Following this is a section (2985) which says that for mere failure to appear he is not liable to pay the amount of plaintiff’s judgment until he has had an opportunity to show cause against the issuance of an execution. A further provision relating to the whole chapter with reference to attachment and garnishment is to this effect: That the chapter shall be liberally construed, and that no attachment shall be quashed, dismissed, or released, if the defect in any of the proceedings has been or can be amended so as to show that a legal cause for the attachment existed at the time it was issued. Now, we have held in a number of cases that a proceeding by garnishment is in the nature of a proceeding in rem, and that for certain purposes, at least, a lien upon the res is created by the service of notice of garnishment. The res in this case was the property in the hands of the garnishee; the proceeds of which were afterwards turned over to the clerk, and now constitute the fund in controversy. Gage v. Maschmeyer, 72 Iowa, 696 (34 N. W. Rep. 482). McDonald v. Moore, 65 Iowa, 171 (21N. W. Rep. 504); Fanning v. Railroad Co., 37 Iowa, 379; Rood, Garnishment, section 5,193; Shinn, Attachment and Garnishment, section 467. Garnishment is also, in effect, an action by the defendant, against the garnishee in the name of and for the benefit of the plaintiff, and the garnishee may be made personally liable. Citizens State Bank v. Council Bluffs Fuel Co., 89 Iowa, 618 (57 N. W. Rep. 444); Mooar v. Walker, 46 Iowa, 164; McConnell v. Denham, 72 Iowa, 494 (34 N. W. Rep. 298); Clark v. Raymond, 86 Iowa, 661 (53 N. W. Rep. 354). In the case of Padden v. Moore, 58 Iowa, 703 (12 N. W. Rep. 724), a garnishee was notified to appear on the ninth day qf the October term of the Winneshiek county district court. On .that day the garnishee went to the county seat, intending to make answer. Court was not in session, but had adjourned. Being advised of this fact, the garnishee returned to his home, and gave the matter no further attention. Upon re-coñvening, the court appointed a commissioner to' take the answers of the garnishee, and a day was appointed for him to answer. The garnishee did not appear, and the commisioner so reported. At the following March term the court rendered judgment against the garnishee on his default. Thereafter a notice was served on the garnishee to show cause why execution should not issue. Garnishee made a showing, but for some reason it did not reach the court. Execution having been issued and levied upon certain chattels of the garnishee, he brought suit to enjoin the sale on the ground that the judgment against him was without jurisdiction, and void. A decree was entered dismissing the petition. The garnishee appealed to this court, and the decree was reversed on the ground that the court had no jurisdiction of the person of the garnishee. The case is made to turn expressly upon the thought that the court below had no jurisdiction of the person of the garnishee, and the fact that the garnishee alleged that he was in no manner indebted to the execution defendant at the time the notice of garnishment was served upon him was regarded as material. Importance was also given to the fact that the garnishee did not appear in response to the notice. We held: First, that the garnishee was not obliged to respond to such a notice, for the reason that the statute requires that plaintiff cite the garnishee to appear at the first day of the next term of court; second, that he did not appear, and that the court had no jurisdiction to render a personal judgment; and, third, that, as he alleged he was not indebted to the execution defendant, the burden was upon the plaintiff to show that he was. The Case differs in many important respects from the case at bar. Here the garnishee appeared, and submitted himself to the jurisdiction of the court, and he also admitted that he had certain property in his hands belonging to the attachment defendant. The court had jurisdiction of his person. The only other question is, did it have j urisdiction of the res ? Turning to the ■ first section of the Code quoted above, it will be seen that the appellee did everything that was necessary to effectuate the garnishment, so far as the property was concerned. It did not, it is true, direct the sheriff, in writing, to take the answers of the garnishee, nor did he in fact do so. It did, however, notify the garnishee to appear on February 15, to make answer, and further cited him to hold all property of the attachment defendant in his custody, in order that it might be dealt with as provided by law. We have held that notice in writing is not essential when the sheriff takes the answers of the garnishee under section 2980. Stove Co. v. Shedd, 82 Iowa, 540 (48 N. W. Rep. 933). And we have also said that delay in taking the garnishee’s answer will not be a ground for his discharge. Boyer v. Hawkins, 86 Iowa, 40 (52 N. W. Rep. 659). Tet further, in the case of Fanning v. Railroad Co., supra, it appeared that an execution issued from the circuit court, and the garnishee was cited to appear at the district court. He had, however, made answers to the sheriff under Code, section 2980, and these answers were filed in the circuit court, and judgment rendered thereon. Under such a state of facts we held the judgment good. It seems to us, in view of these holdings, that the notice referred to in section 2979 is not essential to jurisdiction of the res, but is a prerequisite to a valid personal judgment against the garnishee, unless he voluntarily waive it by appearing in court, and submitting himself to its jurisdiction. The notice referred to in section 2975 is essential to jurisdiction in rem, and of course cannot be waived. Williams v. Williams, 61 Iowa, 615 (16 N. W. Rep. 718); Rock v. Singmaster, 62 Iowa, 511 (17 N. W. Rep. 744); Edler v. Hasche, 67 Wis. 653 (31 N. W. Rep. 57); Rood, Garnish., section 271, and authorities cited. ^The lower court did not err in holding that it had jurisdiction of the res; that the garnishee waived the defect in the notice given him by voluntarily appearing and answering; and that plaintiffs’ garnishment, being first in point of time, was first in right. We have support for our conclusions in the following, among other, authorities: Westphal v. Clark, 42 Iowa, 371; Stockberger v. Lindsey, 65 Iowa, 471 (21 N. W. Rep. 782); Houston o. Walcott, 1 Iowa, 86; Hearn v. Adamson, 64 Ga. 608; Wellover v. Soule, 30 Mich. 481; Dittenhoefer v. Clothing Co. (Wash.) 30 Pac. Rep. 660; Howland v. Jenel (Minn.) 56 N. W. Rep. 581; Wickam v. Lumber Co. (Wis.) 61 N. W. Rep. 287. The judgment of the district court is affirmed.  